Ex parte Singer

• Decision Date: 21 September 1922
• Docket Number: 2941.
• Citation: 284 F. 60
• Parties: Ex parte SINGER.
• Court: U.S. Court of Appeals — Third Circuit

284 F. 60

Ex parte SINGER.

No. 2941.

United States Court of Appeals, Third Circuit.

September 21, 1922

James Mercer Davis, of Camden, N.J., for plaintiff in error.

Walter G. Winne, U.S. Atty., of Hackensack, N.J., and Frederic M. P Pearse, Asst. U.S. Atty., of Newark, N.J.

Before WOOLLEY, Circuit Judge.

WOOLLEY Circuit Judge.

I shall state very briefly the facts on which the pending petition for a writ of habeas corpus is based and cite with little discussion the cases in which may be found the principle of law controlling its determination.

On March 8, 1921, Samuel Singer was convicted by a jury in the District Court of the United States for the District of New Jersey on both counts of an information charging him, first with the transportation of liquor, and second, with the sale of liquor, in violation of the Volstead Act. 41 Stat. 305.

On March 17, 1921, Singer was also convicted by a jury in the same court on four counts of an indictment; the first and third charged him with the sale of liquor, and the second and fourth with the transportation of liquor, in violation of the same act. After a motion in arrest of judgment had been denied, the court sentenced Singer on the third count of the indictment to pay a fine and be imprisoned for a term of three years. No proceedings were had, orders made, or action taken by the court with reference to the imposition of sentence on the two counts of the information, or on the remaining three counts of the indictment. In imposing sentence on the third count alone the learned trial judge, speaking to the prisoner, simply said:

'I am going to sentence you on the third count of the indictment on which you were convicted, and I am not at this time going to sentence you on the other charges which are standing against you in this court.'

In colloquy with counsel the trial judge disclosed that he had imposed the sentence of three years on the third count upon the theory that the conviction on that count was for a second offense. 41 Stat. 305, Sec. 29. Singer prosecuted a writ of error from the United States Circuit Court of Appeals for the Third Circuit against the judgment so entered, assigning as error, among other things, the illegality of the sentence. The Circuit Court of Appeals overruled all assignments of error based on the proceedings at the trial but reversed the judgment entered on the third count on a finding that the offense there charged was not a second offense and remanded the case 'for imposition of sentence in accordance with law. ' Singer v. United States, 278 F. 415.

In obedience to the mandate of the appellate court the trial judge, on March 20, 1922, imposed upon Singer a new sentence, under the third count of the indictment, of imprisonment for a term of six months. He then for the first time imposed a sentence under the first count of the indictment for a like term and also for the first time imposed a sentence under the second count of the information for a like term (all three counts being for the sale of liquor), and prescribed that the term of each sentence shall 'not * * * run concurrently with any other sentence this day imposed. ' Between the term at which Singer was convicted on the information and on the indictment and the term at which the last two sentences were imposed there intervened three full terms of the District Court. Singer, having served the term of the sentence lawfully reimposed under the third count of the indictment, now presents his petition for a writ of habeas corpus, alleging that he is unjustly and illegally restrained of his liberty by reason of illegal and void commitments based on the sentences of imprisonment imposed on the second count of the information and the first count of the indictment by a court without jurisdiction lawfully to impose the same. This general averment is predicated on the proposition of law, as framed by Singer, that the power of a court to pronounce judgment and impose sentence in a criminal case is lost with the passing of the term at which the verdict is rendered.

In determining Singer's rights on this petition I have not found it necessary to consider or decide this proposition as broadly stated. My inquiry has been directed to what the trial judge did rather than to the term at which he did it. What the trial judge did at the trial term was to pass by the imposition of sentence upon the conviction on both counts of the information and on three counts of the indictment. This was in effect a suspension of the imposition of sentence whether temporary or permanent the judge did not state. As to the power of a court to suspend sentence in given circumstances, there can be no doubt. Certainly it is competent for a court temporarily to suspend its judgment, and continue to do so from time to time, and indeed from term to term, in a criminal cause for the purpose of hearing and determining motions and other proceedings which may occur after verdict and which may properly be considered before judgment; also to gain information that will lead to a just sentence; to give the prisoner an opportunity to perfect an appeal; and, in fact, 'for any legitimate purpose,' or 'good and valid reason.' But a court cannot by the artifice of...