Fredericks v. Snook

• Decision Date: 28 October 1925
• Docket Number: No. 4609,4683.,4609
• Citation: 8 F.2d 966
• Parties: FREDERICKS v. SNOOK, Warden. DONEGAN v. SAME.
• Court: U.S. Court of Appeals — Fifth Circuit

8 F.2d 966 (1925)

FREDERICKS v. SNOOK, Warden.

DONEGAN v. SAME.

Nos. 4609, 4683.

Circuit Court of Appeals, Fifth Circuit.

October 28, 1925.

Frank A. Doughman, of Atlanta, Ga., for appellants.

J. W. Henley, Asst. U. S. Atty., of Atlanta, Ga., for appellee.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

These two cases, while not consolidated, were heard at about the same time, were argued by the same counsel, and present practically the same questions of law, so that they may be disposed of in a single opinion. They are appeals from judgments denying writs of habeas corpus.

In No. 4609 appellant was convicted in the Northern District of Ohio on two counts of an indictment charging (together with four others) violation of the Act of February 13, 1913 (Comp. St. §§ 8603, 8604), and was sentenced to the penitentiary at Atlanta, Ga. The material part of the sentence reads as follows:

"It is ordered that the defendant Ben Fredericks be imprisoned in the United States Penitentiary at Atlanta, Ga., for a period of five (5) years on the first count and three (3) years on the second count from and after the 13th day of April, 1921;

"That the defendants Anthony Belock, Morris Nadel, Vincent Smith and John R. Kane each be imprisoned in the United States Penitentiary at Atlanta, Georgia, for a period of five (5) years on the first count and one year on the second count from and after the 13th day of April, 1921, said sentences to run consecutively, viz., that the sentence on the second count shall begin to be served after the expiration of the sentence on the first count."

It is the contention of appellant that his sentence was distinct from the others and ended with the semicolon after the words, "13th day of April, 1921," ending the first paragraph. A sentence must be construed the same as any other judgment and the usual canons of construction should be applied. Freeman on Judgment (5th Ed.) par. 76. In Ewing v. Burnet, 11 Pet. at page 54 (9 L. Ed. 624) the Supreme Court had this to say:

"Punctuation is a most fallible standard by which to interpret a writing; it may be resorted to when all other means fail; but the court will first take the instrument by its four corners, in order to ascertain its true meaning; if that is apparent on judicially inspecting the whole, the punctuation will not be suffered to change it."

Applying the usual rules of construction to the sentence as a whole, it is clear that the concluding clause, "said sentences to run consecutively, viz., that the sentence on the second count shall begin to be served after the expiration of the sentence on the first count," applies to appellant as well as to his codefendants. Appellant's sentence was for eight years, beginning April 13, 1921, and has not expired as contended by him.

In No. 4683 the sentence is not so clear. Appellant was indicted in the Southern District of New York and charged (in connection with one other) with feloniously taking and carrying away certain telegrams, the property of the United States. The indictment contained fourteen counts; the first thirteen charging the substantive offense and the fourteenth charging a conspiracy. His codefendant was acquitted on the entire indictment, and he was convicted on the first thirteen counts. He took a writ of error to the Circuit Court of Appeals for the Second Circuit, but made no point as to his sentence. That court affirmed the conviction as to all but the third count, and a mandate was duly returned to the District Court Sentence was originally imposed upon appellant by Hon. E. Y. Webb, then presiding in the Southern District of New York, and the entry is in the words and figures as follows:

"March 3, 1922. Deft. Edward Donegan, eight months on each of counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12; and two years on count 13; and to run consecutively, and to pay a fine of $5,000.00 on each count. Total $65,000.00. Bail fixed in sum of $100,000.00, pending appeal to U. S. C. C. A."

When the mandate of the Circuit Court of Appeals was returned, further proceedings were had before Hon. John C. Knox, and an order was entered which, after reciting the reading and filing of the mandate in the usual terms, concludes with this paragraph:

"Ordered, adjudged and decreed that a bench warrant issue for the apprehension of the said Edward Donegan and that he be taken into custody upon said...