Mintie v. Biddle

• Decision Date: 17 November 1926
• Docket Number: No. 7588.,7588.
• Citation: 15 F.2d 931
• Parties: MINTIE v. BIDDLE, Warden.
• Court: U.S. Court of Appeals — Eighth Circuit

15 F.2d 931 (1926)

MINTIE v. BIDDLE, Warden.

No. 7588.

Circuit Court of Appeals, Eighth Circuit.

November 17, 1926.

G. A. Minnich, of Carroll, Iowa, for appellant.

Alton H. Skinner, Asst. U. S. Atty., of Topeka, Kan. (Al. F. Williams, U. S. Atty., of Topeka, Kan., on the brief), for appellee.

Before LEWIS, Circuit Judge, and MUNGER and FARIS, District Judges.

FARIS, District Judge.

Appellant, confined in the United States Penitentiary at Leavenworth, serving a sentence of a year and a day, and until he shall pay a fine of $500, or be otherwise discharged, sought discharge below through a writ of habeas corpus; being cast, he appealed in the conventional way.

The facts upon which he was sentenced are in brief these: He was jointly indicted with one Levy and another for violating section 215 of the Penal Code (Comp. St. § 10385). He was at large on bail, but his codefendants were not, and on February 14, 1923, he appeared before the District Court for the District of Indiana and pleaded guilty. It was announced in his presence that it was not desired to sentence him till his codefendant Levy, then seemingly a fugitive from justice, could be brought to trial, as it was desired by the government to use petitioner as a witness against petitioner's codefendant Levy. He was thereupon told by the judge to keep the district attorney informed of his whereabouts and to appear for further proceedings when notified. None of this, however, appears on the court record. It was shown by extrinsic, oral evidence. All that the record shows is that, after petitioner pleaded guilty, his case was continued till the next term, without any sentence being imposed, or any other order entered. Thereafter no further order was made in the case for some thirty-four months and in the meantime five terms of court came and went.

On the 30th day of November, 1925, a subpœna was issued and directed to petitioner, who then resided in Houston, Tex., commanding him to appear as a witness for the government in the pending case against his codefendant, Levy. While this subpœna was not served on him, petitioner learned of its issuance, and appeared at Indianapolis, where the case against him and Levy was pending, for the purpose of testifying for the government and against Levy in that case. No trial was had, because Levy, on December 14, 1925, pleaded guilty. Thereupon, petitioner was put in jail and held there till December 16, 1925, when he was sentenced to serve the term from which, by the writ of habeas corpus herein, he now seeks to be discharged.

The learned trial court took the view that the delay, which occurred between plea and sentence, must be deemed, from the facts above stated, to have occurred with the consent of the petitioner, and that he may not complain. Thereupon, petitioner was remanded to the custody of respondent, who is the Warden of the United States Penitentiary at Leavenworth, Kan.

This is well enough, if the matter is not one of jurisdiction. If it is jurisdictional, and if jurisdiction shall be lost when sentence is omitted and postponed indefinitely, without any order of continuance for some four terms, then no question of consent can be of aid in the case, even if, arguendo, it be conceded that what took place was tantamount to petitioner's consent to the initial deferment of sentence.

Moreover, if the matter is one of jurisdiction — that is, if the trial court lost jurisdiction by the indefinite postponement of sentence — then resort by petitioner to the writ of habeas corpus to effect his release from his incarceration is a proper remedy, even though he omitted to test the matter by suing out a writ of error. Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717.

We have no doubt that, after a plea of guilty or after conviction of one guilty of a crime, sentence may be deferred at convenience till some day, or any day in the current term. This is so, because the court ordinarily retains jurisdiction over its judgments for the current term in all cases. Nor have we any doubt that sentence may, in furtherance of the administration of justice, be deferred to some day in the next term or even to some definite time in the second succeeding term (Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355), by an order made in the case (Miner v. United States, 244 F. 422, 157 C. C. A. 48, 3 A. L. R. 995; Ex parte Singer C. C. A. 284 F. 60). But, in the instant case, sentence was not deferred to a day certain, or to a term certain; it was in effect deferred indefinitely. For the court omitted to make an order deferring sentence. He merely said, in substance, to petitioner, that the latter should keep the district attorney advised of his whereabouts and appear for further proceedings when notified. It is true, that the case, wherein petitioner and his codefendants stood indicted, was then continued till the next term. No serious question we think, could have been raised had sentence been pronounced at the term to which the case of defendant had thus been continued. But this was not done; no orders in the case were entered at the latter term. But, after the term to which continuance was thus had, some four terms elapsed before any other order was made of record in the case. The language of the court connotes clearly an indefinite postponement of the imposition of sentence on petitioner. It may well be, other things being equal, that, if the case had, at the next time, been further postponed by an order of continuance, and so on, from term to term, such order, or orders of continuance would have afforded such definiteness of deferment of sentence, as to have taken from the case the illegality created and existing, by reason of the language of the court, and the lack of the existence of record of an order definitely deferring sentence. But no such situation is presented by the record, and no occasion arises to speculate about an hypothetical situation.

So the question presented by the case is whether the trial court, by postponing the sentence of petitioner indefinitely, lost jurisdiction to lawfully impose a sentence on him at all.

We think it did, and we think the great weight of the ruled cases, as well as of the analogous authorities and the reason of the thing, lead to the same conclusion. Some latitude of action of the court, referable to the furtherance of the administration of justice, of course exists. Deferring of a sentence to a day, or term certain by affirmative orders in furtherance of justice, or for the purpose of observing the behavior of a defendant, so that less punishment, if he behave, shall be inflicted than if he does not behave, is legally permissible. For the former may be and the latter is for the benefit of defendant, and to such action, within reasonable limits, he could not be heard to complain, for, if he did not get that, he would likely have to accept worse. Here, however, the government, for its own ends and convenience deferred sentence till such time as the district attorney might see fit to notify defendant to appear. Thirty-four months passed, and then defendant was notified to appear as a witness, and not as a defendant. Obviously, the matter of the furtherance of the administration of justice is not a unilateral one. The accused is due some modicum of consideration. It is not alone the ends and accommodation of the government which are to be considered and subserved; but those of the defendant as well. Held thus in suspension indefinitely and for a period which turned out to be thirty-four months, defendant could, in the interim, make no plans, enter into no contracts, engage in no permanent occupation, and bind himself to no obligations, or create any permanent ties, business or domestic. But so much for the reasons for the view that an indefinite deferment of sentence is not warranted by matters which merely rest in pais. Let some reference be made to the cases.

In the case of United States v. Wilson, 46 F. 748, in an opinion by Judge Beatty, of the Circuit Court for the District of Idaho, it was said:

"The questions for determination are, first, the power of a court to indefinitely suspend sentence, and, next, to revoke such order of suspension and to proceed to judgment. There can be no doubt of the right of a court to temporarily suspend its judgment, and continue to do so from time to time in a criminal cause, for the purpose of hearing and determining motions and other proceedings which may occur after verdict, and which may properly be considered before judgment, or for other good cause. In this cause, however, the record does not show that the suspension was for any such reason, or for a certain or short time, but, on the contrary, it appears it was for such uncertain time as the defendant should continue to remain so favorably impressed with the laws of the land as to obey them. Instead of this being a mere suspension of sentence, it operated as a condonation of the offense, and an exercise of a pardoning power, which was never conferred upon the court. In this I think the court clearly transcended its authority."

In the case of Ex parte Singer, supra, at page 63, the court said:

"So it is clear from the authorities that a court may, by appropriate action, retain jurisdiction of a criminal cause, for a lawful purpose, beyond the term of the conviction and may impose sentence at a later term. But, when a court declines to take action at the term of the conviction, it thereby inevitably postpones sentence, and when (in the absence of statute or accepted practice) a court postpones sentence silently — that is, without an indication of a lawful purpose — it...