Nishimoto v. Nagle

• Decision Date: 03 November 1930
• Docket Number: No. 6154.,6154.
• Citation: 44 F.2d 304
• Parties: NISHIMOTO v. NAGLE, Immigration Com'r.
• Court: U.S. Court of Appeals — Ninth Circuit

44 F.2d 304 (1930)

NISHIMOTO v. NAGLE, Immigration Com'r.

No. 6154.

Circuit Court of Appeals, Ninth Circuit.

November 3, 1930.

Stephen M. White, of San Francisco, Cal., for appellant.

Geo. J. Hatfield, U. S. Atty., and Hubert Wyckoff, Jr., Asst. U. S. Atty., both of San Francisco, Cal., for appellee.

Before RUDKIN and WILBUR, Circuit Judges, and NORCROSS, District Judge.

WILBUR, Circuit Judge.

The appellant, an alien who entered the United States in December, 1919, was ordered deported under the provisions of section 19 of the Immigration Act of February 5, 1917 (39 Stat. 889 8 USCA § 155), on the ground that he had been "sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral turpitude, committed at any time after entry." He applied to the District Court for a writ of habeas corpus, which was denied, and he appeals to an order of denial.

It appears that the appellant was charged with the issuance of five separate checks with intent to defraud, the issuance of each check constituting a separate felony, and he pleaded guilty to each of the counts of the information filed against him in the superior court in and for the county of Tulare. The court imposed the sentence upon each separate count of the indictment that the appellant "be imprisoned in the state prison of this state." The court also adjudged "that these sentences and terms of imprisonment shall run concurrently." Appellant claims that inasmuch as the five sentences for five indeterminate terms in the state prison run concurrently that therefore the sentence is but a single sentence and he has not been sentenced "more than once," and for that reason, having resided in the United States more than five years, is not subject to deportation. It is true that for some purposes a sentence like this is treated as a single sentence. In the case of Kuehn v. U. S. (C. C. A.) 8 F.(2d) 265, 266, cited by the appellant, two sentences running concurrently upon two counts of an indictment were objected to by the appellant therein upon the ground that the two offenses were a single offense. The court held that this was immaterial in view of the fact that the sentences run concurrently and in that connection stated, "There was but one sentence, and it was a permissible sentence for the offense charged in the second count." This was in pursuance of the rule uniformly applied on appeal and stated in the opinion of Judge Gilbert in the above-mentioned case "where conviction is had upon more than one count, the sentence, if it does not exceed that which might be imposed on one count, is good if that count is sufficient."

Although it thus appears that for some purposes the sentence may be regarded as a single sentence, it is in fact, as it purports on its face to be, five separate sentences. The fact that the sentences run concurrently merely means that the convict is given the privilege of serving each day a portion of each sentence, so that in practical effect so far as he is concerned if he serves the sentence and nothing occurs subsequent to the judgment to alter the situation he is discharged at the expiration of the maximum term imposed upon any one of the counts. If, however, the sentence upon each count was different, he could not be discharged until he had served the longest sentence. Even if the sentences were all for an equal period, a pardon of the convict upon all but one of the counts would not relieve him from serving the full term imposed upon the count for which no pardon was granted. The case of the United States v. Peeke, 153 F. 166, 12 L. R. A. (N. S.) 314 (C. C. A. 3), is cited by the appellant in support of the proposition that only a single sentence was imposed upon the appellant. That case dealt with a situation where a...