In re Esmond

• Decision Date: 01 June 1890
• Citation: 42 F. 827
• Parties: In re ESMOND.
• Court: U.S. District Court — District of South Dakota

42 F. 827

In re ESMOND.

United States District Court, D. South Dakota.

June, 1890

Winsor & Kittredge, for petitioner.

Wm. B Sterling, for the United States.

FOSTER J.

This is an application made by Henry Esmond, a prisoner tried and sentenced in the district court of the territory of Idaho-exercising United States jurisdiction for certain purposes, on four convictions for offenses connected with the robbery of the United State-mail. The prisoner was sentenced to four consecutive terms of imprisonment, of three years each; the judgment of the court providing in each of the sentences after the first that the additional term of three years was 'to commence at the expiration of the term of three years to be served by said defendant this day adjudged against him in the case of the United States, criminal number three, against Henry Esmond, or whenever his term of imprisonment after the judgment in said case shall cease and be ended for any reason, except by the death of the said defendant. ' There being no United States prison in the territory of Idaho, the said Esmond was confined by order of the attorney general in the United States penitentiary at Sioux Falls, in the territory of Dakota. The sentence was rendered on the 30th day of September, 1886, and the first term expired, after giving credits for good behavior, on the 30th day of May, 1889. The question presented for our decision is whether the said consecutive sentences are legal and valid. It is claimed by the petitioner that the said sentence beyond the first imprisonment is illegal and void because it is indefinite and uncertain, and the court had no power to impose a cumulative sentence. The statute of Idaho contained the following provision:

'When any person is convicted of two or more crimes, before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction must commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be. ' Rev. St. Idaho, Sec. 7237.

It is contended for the petitioner that this provision does not apply to offenses against the laws of the United States tried in the territorial courts. Touching this question, there are two cases decided by the supreme court to which we will refer. Reynolds v. U.S., 98 U.S. 145, was a prosecution in the territorial courts of Utah for bigamy under the act of congress. The laws of Utah made a grand jury to consist of 15 persons, and the indictment was found by such a grand jury; whereas, the laws of the United States makes the minimum number of grand jurors 16. The supreme court held that the territorial court was not a United States court, and that the statute of the territory governed its proceedings. The court says:

'They are courts of the territories invested for some purposes with the powers of the courts of the United States. * * * This leaves the territorial courts free to act in obedience to the requirements of the territorial laws in force for the time being.'

The territorial legislature of Montana had abolished all distinctions between proceedings at law and in equity in its courts. The only error assigned in the following case was the intermingling of legal and equitable remedies in one form of action. The court say:

'Such an objection would be available in the circuit and district courts of the United States. * * * Whether the territorial courts are subject to the same regulations is the question which is now fairly presented.'

After discussing the question at some length, the conclusion is expressed in these words:

'From a review of the entire past legislation of congress on the subject under consideration, our conclusion is that the practice, pleadings, and forms and modes of proceedings of the territorial courts, as well as their respective jurisdiction, subject, as before said, to a few express or implied conditions in the organic act itself, were intended to be left to the legislative action of the territorial assembly, and to the regulations which might be adopted by the courts themselves. ' Hornbuckle v. Toombs, 18 Wall. 648.

Now, if there is nothing in the organic act of the territory of Idaho impliedly or...