PEOPLE OF UNITED STATES v. McDonnell

• Decision Date: 06 October 1934
• Docket Number: No. 43721.,43721.
• Citation: 11 F. Supp. 1014
• Parties: PEOPLE OF UNITED STATES ex rel. UMBENHOWAR v. McDONNELL, United States Marshal.
• Court: U.S. District Court — Northern District of Illinois

11 F. Supp. 1014

PEOPLE OF UNITED STATES ex rel. UMBENHOWAR v. McDONNELL, United States Marshal.

No. 43721.

District Court, N. D. Illinois, E. D.

October 6, 1934.

Dwight H. Green, U. S. Dist. Atty., of Chicago, Ill., for the People.

A. L. Gettys, of Chicago, Ill., for respondent.

WOODWARD, District Judge.

On the petition of the relator, a writ of habeas corpus issued. It appears from the petition and return that on June 25, 1932, the relator committed an offense against the United States in that he violated what is known as the Dyer Act (18 USCA § 408). He was arrested and tried for the offense and on December 2, 1932, he was sentenced by the United States District Court to confinement in the United States Penitentiary at Leavenworth, Kan., for a term of two years. He was taken to the penitentiary and on July 10, 1934, he was released from the penitentiary with credit for good conduct after having served nineteen months and six days of his sentence. Instead, however, of being absolutely discharged, he was treated as on parole, as provided by section 4 of the Act of June 29, 1932, effective July 29, 1932 (47 Stat. 381, 18 USCA § 716b), which reads as follows: "Any prisoner who shall have served the term or terms for which he shall hereafter be sentenced, less deductions allowed therefrom for good conduct, shall upon release be treated as if released on parole and shall be subject to all provisions of law relating to the parole of United States prisoners until the expiration of the maximum term or terms specified in his sentence: Provided, That this section shall not operate to prevent delivery of a prisoner to the authorities of any State otherwise entitled to his custody."

After his release and before the time when his sentence would have run its full course, namely, on December 2, 1934, relator was taken into custody by the United States marshal for this district for a violation of his parole. Thereupon, he filed his petition for the writ of habeas corpus and the writ issued.

The question presented is as to whether or not amendatory section 716b is applicable to convicts who committed offenses against the United States prior to July 29, 1932, although tried, convicted, and sentenced after July 29, 1932. If section 716b is not applicable to relator, he is entitled to his discharge on habeas corpus.

As the law stood when the offense of which the relator was convicted, he was subject to imprisonment not to exceed a definite length of time — in his case two years — and as a part of his sentence he was entitled, in case his conduct showed that he had faithfully observed all the rules of the prison and had not been subjected to punishment, to a deduction from the term of his sentence to be estimated as the law required (18 USCA § 710). The law also provided that "each prisoner entitled to the deduction provided for in section 710 of this title shall be discharged at the expiration of his term of sentence less the time so deducted." (18 USCA § 713).

Had it not been for the amendment to 18 USCA § 716b, there would be no question but that the relator had fully served his sentence. Are the provisions of section 716b applicable to the relator? The offense of which the relator was convicted was committed a few days prior to the effective date of section 716b. Under the Constitution, Congress is prohibited from passing an ex post facto law.

"A law which deprives an accused person of any substantial right or immunity possessed by him before its passage is ex post facto as to prior offenses." 12 C. J. p. 1103.

It is well settled that, among others, an ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was committed, or a punishment in addition to...