Kidwell v. Zerbst

• Decision Date: 13 May 1937
• Docket Number: No. 1192.,1192.
• Citation: 19 F. Supp. 475
• Parties: KIDWELL v. ZERBST, Warden.
• Court: U.S. District Court — Northern District of Georgia

19 F. Supp. 475

KIDWELL v. ZERBST, Warden.

No. 1192.

District Court, N. D. Georgia.

May 13, 1937.

Paul Crutchfield, of Atlanta, Ga., for petitioner.

H. H. Tysinger and H. T. Nichols, Asst. U. S. Attys., both of Atlanta, Ga., for respondent.

UNDERWOOD, District Judge.

Petitioner was sentenced on September 27, 1932, in the United States District Court for the Eastern District of Kentucky, to serve a term of two years in a penitentiary or prison camp for violation of the National Prohibition Act (27 U.S.C.A. § 1 et seq.).

He was released on parole on August 27, 1933, and was declared to be a parole violator on June 18, 1934. On the latter date, June 18, 1934, a warrant was issued by the Chairman of the United States Board of Parole, which stated:

"And whereas, satisfactory evidence having been presented to the undersigned Member of this Board that said paroled prisoner named in this warrant has violated the conditions of his parole, the same is hereby revoked and the said paroled prisoner is declared to be a fugitive from justice.

"Now, therefore, this is to command you to execute this warrant by taking the said Sherman Kidwell, wherever he is found in the United States, and him safely return to the institution hereinafter designated."

No institution was designated in the warrant, but there were added thereto the words: "When apprehended communicate with Director, Bureau of Prisons for instructions." On June 11, 1935, petitioner was indicted, with others, in the same court for violating the Liquor Taxing Act of 1934, 48 Stat. 313, and was sentenced by said court on June 29, 1935, the sentence being in the following language: "This cause coming on for sentence, the defendants having nothing further to say, are each sentenced to be committed to the custody of the Attorney General, or his authorized representative for confinement in an institution of the Reformatory or Penitentiary type for a period of Two (2) Years at Hard Labor, and they are now committed."

Petitioner was committed on the same day to jail pending transfer to the United States Industrial Reformatory at Chillicothe, where he was received on July 12, 1935. He was subsequently transferred to the Atlanta Penitentiary, where he was received on August 23, 1935.

On January 25th, 1936, the Parole Executive wrote the Warden of the Penitentiary at Atlanta the following letter:

"Mr. A. C. Aderhold "Warden, U. S. Penitentiary "Atlanta, Georgia. "Attention: Parole Officer. "In re: Sherman Kidwell "Reg. No. 46682-A. ZW

"Dear Sir:

"Enclosed herewith is parole violator warrant in duplicate and copy of referral for consideration of alleged violation in the case of the above named man who is now serving a new sentence in your institution.

"Please place the warrant as a detainer and take Kidwell into custody on the warrant at the expiration of his present sentence. The case should be listed for a hearing on the violation charge only after Kidwell is in custody on the warrant.

"When you have executed the warrant return it to this office stating specifically that you are holding Kidwell as a violator and on the original commitment."

The record shows, therefore, that petitioner has been held under two sentences of the same court, in the same penitentiaries (at Chillicothe and Atlanta) from July 12, 1935, until January 21, 1937, when his second sentence expired, and from January 21, 1937, until the present time solely under the parole warrant and the letter of the Parole Executive.

When petitioner was declared to be a parole violator, he had 395 days to serve on the first sentence. If, therefore, the first sentence began to run again when he was returned to the penitentiary and ran concurrently with the second sentence, then petitioner has completed the service of both sentences and is now being illegally held and should be discharged.

The Circuit Court of Appeals for the Fifth Circuit, in the case of Aderhold v. McCarthy, 65 F.(2d) 452, said, in commenting upon sentences without any provision for one sentence to follow the other, even where the sentences were imposed by different courts, that: "Each was imposed by authority of the United States, and was to be executed in the Atlanta penitentiary. There being nothing to prevent, each would begin to run on his arrival there, and he would be entitled to discharge at the expiration of the longest term."

This seems to be the settled law. Zerbst v. Lyman (C.C.A.5th) 255 F. 609, 5 A.L.R. 377; White...