Howard v. United States

• Decision Date: 08 July 1896
• Docket Number: 434.
• Citation: 75 F. 986
• Parties: HOWARD v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

75 F. 986

HOWARD v. UNITED STATES.

No. 434.

United States Court of Appeals, Sixth Circuit.

July 8, 1896

Harlan Cleveland, U.S. Atty., in support of the power in the court to pronounce cumulative sentences, referred to the following authorities:

Rex v. Wilkes, 4 Burrows, 2578, 19 Howell, St. Tr. 1133 1134; Rex v. Robinson, 1 Moody, Cro.Cas. 413; Rex v. Cutbush, L.R. 2 Q.B. 379; Castro v Queen, 6 App.Cas. 229; William's Case, 1 Leach, 536; 1 Chir.Cr.Prac. 718; O'Connell v. Queen, 11 Clark & F. 377; Gregory v. Queen, 15 Adol.& E. 974; Com. v. Sylvester, Brightly, N.P. 331; Com. v Birdsall, 69 Pa.St. 482; Brown v. Com., 4 Rawle, 259; Russel v. Com., 7 Serg.& R. 489; Kite v.

Com., 11 Metc. (Mass.) 585; People v. Forbes, 22 Cal. 136; State v. Smith, 5 Day, 175; In re Jackson, 3 MacArthur, 24; Johnson v. People, 83 Ill. 434; Ex parte Kirby (Cal.) 18 P. 655; Bish. Cr. Law, 953; In re Esmond, 42 F. 827.

J. D. Brannan, for appellant.

Before LURTON, Circuit Judge, and SEVERENS and CLARK, District Judges.

CLARK District Judge.

Eight indictments were returned against petitioner, Howard, in the district court of the United States for the Eastern division of the Western district of Tennessee, charging him with violations of section 5480 of the Revised Statutes of the United States in the use of the post-office establishment of the United States in the execution of schemes to defraud. The docket numbers of the cases were 1,727, 1,728, 1,729, 1,730, 1,731, 1,732, 1,758, and 1,759, respectively. These cases were, by order of the court, consolidated, and tried at the same time before the same jury. The trial resulted in a verdict of guilty on each of the indictments, and judgment and sentence were pronounced against the petitioner in each of the cases. The sentence in the first case was to 18 months' imprisonment in the Ohio penitentiary and a fine of $500, and, in each of the seven cases following, 13 months' imprisonment and a fine of $100 were imposed, the same to be applied to the indictments in their numerical order. The sentence in the second and each following case took effect at the expiration of the one next preceding. Mittimus issued, regular in form, under each judgment and sentence, directed to the marshal of the Western district of Tennessee, and commanding him to commit the petitioner, Howard, to the Ohio penitentiary at Columbus, in the state of Ohio, to be there imprisoned for the terms fixed in the eight sentences. The defendant was ordered to stand committed until the several fines imposed and the costs of the prosecution were paid. When the defendant had served out the term of imprisonment imposed by the first sentence (the statutory deduction for good time being made) application was made to the circuit court of the United States for the Eastern division of the Southern district of Ohio for a writ of habeas corpus. The petition for the writ alleged as grounds for the prisoner's discharge from custody:

(1) That cumulative sentences, as imposed by the court, were without authority of law and without power in the court. (2) That the sentences, except the first, were too uncertain and indefinite, in that they were made each to take effect upon the expiration of the preceding sentence, which itself was made uncertain, because the question of allowing credit for good time under the statute was discretionary, and not absolute. (3) That the consolidation of the indictments against the prisoner, and his trial on all of them at the same time, was a proceeding unauthorized by law, and the sentences for that reason void.

Due return was made to the writ, with the answer of the warden of the penitentiary. The writ was discharged upon the trial, the petition dismissed, and the petitioner, Howard, remanded to the custody of the warden of the Ohio penitentiary to complete his terms of imprisonment, in accordance with the sentences of the United States district court for the Western district of Tennessee. On appeal to this court, the judgment of the court below was affirmed; whereupon a second application by petition was made to the same circuit court for the writ. Objections to the sentences were again set out in the petition as grounds for the second application. The only ground for the writ stated in the second petition which is not also contained in the first is based on an objection to the copy of the mittimus in case No. 1,728, which is the second in numerical order of the several mittimuses issued pursuant to the judgment and sentence of the court. What purport to be copies of the original mittimuses are attached to and made part of this petition, and also a copy of the transcript of the judgment of the court is attached to the petition. These copies, it is evident from the petition, are not copies of the originals, but copies of papers in possession of the warden of the penitentiary, which the petition designates as 'commitment papers,' and which papers are themselves only copies of the originals. So the copies attached to the petition, and made part thereof, are copies of copies, and not of the originals. The objection to the mittimus in case No. 1,728 is that 'from date of' is omitted after the words 'for the term of thirteen months'; these words being contained in each of the other mittimuses issued, and from which the sentence is clearly made to take effect from date of expiration of the sentence imposed in the case immediately preceding. The position taken is that this omission leaves the period of imprisonment under the sentence in 1,728 without a date for its commencement, and therefore uncertain and void, and that, as the prisoner has served out the first sentence, he is therefore entitled to be released from custody. The petition does not contain any statement that the copy of the mittimus attached thereto is a correct copy from the paper in the possession of the warden of the penitentiary, and, of course, no statement that the same is a correct copy of the original mittimus issued to the marshal, and under which the prisoner was in fact committed. Whether the failure to make the usual statement that the copy is a correct one of the original is entirely due to an oversight would, of course, be matter of conjecture. One or two other minor grounds are alleged as a basis for the application, but they are entirely without merit, and were not insisted upon by the petitioner's counsel on the argument in this court. This petition, which is signed and sworn to by petitioner alone, was, on motion, dismissed by the circuit court, and the case is here again by appeal. The judgment of the court denying the petition is as follows:

'This cause coming on to be heard on the petition of G. F. B. Howard for a writ of habeas corpus, upon consideration, the court finds that the petition shows the prisoner to be in lawful custody, and does not state to a case for the issuance of a writ. Wherefore it is ordered that the petition be denied, at the costs of the petitioner. Whereupon the petitioner applies to the court for an allowance of an appeal to the circuit court of appeals for the Sixth circuit from the order denying the petition, which appeal is accordingly allowed, and the clerk is directed to issue a citation upon such appeal to the United States attorney for the Southern district of Ohio, as the representative of the United States, who will be the appellee in the proceedings on appeal in the circuit court of appeals.'

It will be seen that the judgment is based on the petition alone and what appears therefrom. The objection based on the omission in the mittimus in 1,728 will be disposed of first.

By section 1028 of the Revised Statutes it is provided:

'Whenever a prisoner is committed to a sheriff or jailer by virtue of a writ, warrant or mittimus, a copy thereof shall be delivered to such sheriff or jailer, as his authority to hold the prisoner, and the original writ, warrant or mittimus shall be returned to the proper court or officer, with the officer's return thereon.'

The contention is that under this statute the copy of the mittimus furnished by the marshal to the warden of the penitentiary is made the warden's only authority for detention of the prisoner, and that, the copy in possession of the warden being void on account of the defect mentioned herein, the prisoner's restraint is unlawful. Omitting the direction and proper teste of the mittimus, the body thereof is as follows:

'You are hereby commanded to commit the defendant, Joseph Leger, alias G. F. B. Howard, to the Ohio penitentiary at Columbus, Ohio, ther to be imprisoned for the term of thirteen months, the expiration of his term of imprisonment under indictment No. 1,727, in accordance with a sentence of this court pronounced against said defendant on this the 4th day of January, 1894, for the crime of violating the laws of the United States in unlawfully using the mails with intent to defraud.'

This contention does not require extended treatment. The warrant or order of commitment is simply an authority and direction to the marshal to take the prisoner to the penitentiary named. The copy furnished by the marshal or clerk to the warden is merely evidence, and evidence only, of the judgment and sentence of the court and the mittimus issued thereunder. The statute makes this evidence of a regular court judgment and mittimus sufficient authority and protection to the warden, and the warden is not required to go beyond this copy in satisfying himself of the existence of a valid sentence against the prisoner. This is the purpose and effect of the copy, and nothing more. The prisoner is not committed by virtue of the copy, but by virtue of the judgment of the court, and the mittimus issued pursuant thereto; the real valid authority under which the...