Harman v. United States

• Decision Date: 13 June 1892
• Citation: Harman v. United States, 50 F. 921 (D. Kan. 1892)
• Parties: HARMAN v. UNITED STATES.
• Court: U.S. District Court — District of Kansas

50 F. 921

HARMAN v. UNITED STATES.

United States Circuit Court, D. Kansas.

June 13, 1892

David Overmeyer, for plaintiff in error.

J. W Ady, U.S. Dist. Atty.

CALDWELL Circuit Judge.

On the 9th day of April, 1888, the plaintiff in error was indicted in the district court for depositing on the 18th day of June 1886, in a post office, for mailing, an obscene paper, in violation of section 3893 of the Revised Statutes of the United States, as amended by act of congress approved the 12th of July, 1876, (chapter 186, 19 U.S.St.p. 90.) He was tried before a jury, found guilty, and sentenced to 'be imprisoned in the Kansas state penitentiary for five years and that he pay a fine of three hundred dollars;' and thereupon the defendant sued out this writ of error under the act of congress approved March 3, 1879, (chapter 176, 20 U.S.St.p. 354.) The chief contention of the learned counsel for plaintiff in error is that the act of congress on which the indictment is founded 'contravenes the first amendment to the constitution of the United States, which provides, among other things, that the tuition of the United States, which provides, among other things, that the freedom of the press shall not be abridged, and is, therefore unconstitutional and void. ' If authority can ever silence contention, the constitutionality of this act of congress is no longer open to discussion. Ex parte Jackson 96 U.S. 727; Ex parte Rapier, 143 U.S. 110, 12 S.Ct. 374. There is, however, a fatal error in this case on the fact of the record. The act of congress provides that persons convicted of its violation 'shall be deemed guilty of a misdemeanor, and shall for each and every offense be fined not less than one hundred dollars nor more than five thousand dollars, or imprisonment at hard labor not less than one year nor more than ten years, or both, at the discretion of the court. ' It will be observed that where the punishment, or any part of it, is imprisonment, it must be 'at hard labor.' The plaintiff in error was sentenced to 'be imprisoned in the Kansas state penitentiary for five years,' and hard labor is not made a part of the punishment, as the statute requires shall be done, where imprisonment forms any part of the sentence. When the statute makes hard labor a part of the punishment, it is imperative upon the court to include that in its sentence. Ex parte Karstendick, 93 U.S. 396. In the courts of the United States the rule is that a judgment in a criminal case must conform strictly to the statute, and that any variations from its provisions, either in the character or extent of the punishment inflicted, renders the judgment absolutely void. Ex parte Karstendick, supra; In re Graham, 138 U.S. 461, 11 S.Ct. 363; Ex parte Lange, 18 Wall. 163; In re Mills, 135 U.S. 263, 10 S.Ct. 762; In re Johnson, 46 F. 477. A different rule prevails in some of the states, (In re McDonald, 74 Wis. 450, 43 N.W. 148; People v. Baker, 89 N.Y. 460;) but the rule on this...