Meyers v. Hunter, 3420.
| Citation | 160 F.2d 344 |
| Decision Date | 24 February 1947 |
| Docket Number | No. 3420.,3420. |
| Parties | MEYERS v. HUNTER, Warden. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Ben Bozeman, of Denver, Colo. (Harold Taft King, of Denver, Colo., on the brief), for appellant.
Randolph Carpenter, U. S. Atty., and Eugene W. Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
An indictment returned in the United States Court for Northern Texas charged H. L. Meyers with attempted robbery of a national bank. Conviction was had, and on October 12, 1936, the court imposed a sentence of twenty-five years imprisonment in the federal penitentiary at Leavenworth, Kansas. After serving a portion of the sentence, the defendant filed in the case a motion challenging the sentence on the ground that the maximum penalty for the crime charged in the indictment was twenty years. The motion was denied. On appeal, the circuit court of appeals held that the maximum punishment for the offense as laid in the indictment was twenty years. The court reversed the judgment and remanded the cause with directions that the defendant be brought before the district court for resentence. Meyers v. United States, 5 Cir., 116 F.2d 601. Pursuant to that command, the district court on April 14, 1941, imposed a sentence of fifteen years in the penitentiary.
By petition filed in the United States Court for Kansas on February 19, 1946, Meyers sought discharge from further confinement in the penitentiary at Leavenworth. The gravamen of the action was that the second sentence in the criminal case should have provided that it begin as of the date of the first sentence, or that in computing the time petitioner had served the time served under the first sentence should be added to that served under the second; and that with allowance for good conduct he had served more than fifteen years and therefore should be freed. The Warden responded, petitioner was produced in court, evidence was submitted, the petition for the writ was denied, and petitioner appealed.
The question presented is whether the second sentence should be treated as though the time served under it began as of the date of the imposition of the first sentence. If so, with allowance for good conduct, the second sentence has been served in full. Otherwise, part of it remains to be served. The second judgment expressly provides that the sentence shall be for a term of fifteen years from the date of that judgment, or until the defendant is otherwise discharged as provided by law. It neither provides that it shall be treated as though the time served under it began as of the date of the imposition of the original sentence nor otherwise makes provision to allow credit for the time previously served under the earlier sentence. The indictment charged an offense. The court had jurisdiction of the subject matter and of the defendant. The judgment fixed a sentence within the maximum authorized by law for the offense as laid in the indictment. And...
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...United States, 161 F.2d 793 (5th Cir. 1947); Ekberg v. United States, 167 F. 2d 380 (1st Cir. 1948). Against credit: Meyers v. Hunter, 160 F.2d 344, 346 (10th Cir. 1947); Howell v. United States, 199 F.2d 366 (4th Cir. 1952). 6 State v. White, 262 N.C. 52, 136 S.E. 2d 205, 208 (1964). Decis......
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