Puccinelli v. United States

• Decision Date: 27 April 1925
• Docket Number: No. 4538.,4538.
• Citation: 5 F.2d 6
• Parties: PUCCINELLI v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

5 F.2d 6 (1925)

PUCCINELLI v. UNITED STATES.

No. 4538.

Circuit Court of Appeals, Ninth Circuit.

April 27, 1925.

Clifford A. Russell and Donald McKisick, both of Sacramento, Cal., for appellant.

Sterling Carr, U. S. Atty., and T. J. Riordan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

RUDKIN, Circuit Judge.

March 11, 1924, Joe Puccinelli entered a plea of guilty to four informations under the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.) in cases numbered 2018, 2019, 2159, and 2162. The record does not disclose the exact nature of the offenses, but the several sentences were as follows: Case No. 2018, a fine of $500, without any order of commitment; case No. 2019, a fine of $500 and imprisonment in the county jail for three months, and, in default of payment of the fine, a further term of imprisonment in the county jail for the period of five months; case No. 2159, a fine of $1,000 and imprisonment in the county jail for one year, and, in default of payment of the fine, a further term of imprisonment in the county jail for the period of ten months; case No. 2162, a fine of $1,000 and imprisonment in the county jail for one year, and, in default of payment of the fine, a further term of imprisonment in the county jail for the period of ten months.

January 12, 1925, the prisoner appeared before a United States commissioner and took the oath prescribed by section 1042 of the Revised Statutes (Comp. St. § 1706). February 11, 1925, he applied to the United States commissioner for a release under the above section, but his application was denied. On the following day he petitioned the court for an order directing the United States commissioner to issue an order releasing him from further imprisonment, but his petition was denied. On the next day, February 13, 1925, the following orders were entered in each of the several cases:

"Case No. 2018. — Ordered that any pauper's oath that defendant may make in this cause shall be of no avail to him."

"Case No. 2019. — Ordered that any pauper's oath that defendant may make in this cause shall be of no avail to him."

"Case No. 2159. — The court on its own motion ordered that the order and the judgment heretofore entered on March 11, 1924, be and the same is hereby amended so that the sentence herein shall run consecutively to the sentence imposed in case No. 2019, U. S. v. Joseph Puccinelli.

"Further ordered that any pauper's oath that defendant may make in this cause shall be of no avail to him."

"Case No. 2162. — The court on its own motion ordered that the order and the judgment heretofore entered on March 11, 1924, be and the same is hereby amended so that the sentence herein shall run consecutively to the sentence imposed in case No. 2159, U. S. v. Joseph Puccinelli.

"Further ordered that any pauper's oath that defendant may make in this cause shall be of no avail to him."

The prisoner thereafter applied to the court below for a writ of habeas corpus, but his application was denied. From the latter order this appeal is prosecuted.

Where sentences are imposed on verdicts of guilty or pleas of guilty on several indictments, or on several counts of the same indictment, in the same court, each sentence begins to run at once and all run concurrently, in the absence of some definite, specific provision that the sentences shall run consecutively, specifying the order of sequence. United States v. Patterson (C. C.) 29 F. 775; Daugherty v. United States (C. C. A.) 2 F.(2d) 691. By entering the amendatory orders of February 13, 1925, the court below recognized this rule, and the government, we understand, concedes it. Inasmuch as the appellant had already served the longest term of imprisonment imposed by any of the sentences and 30 days' additional when he made application for a writ of habeas corpus, he was entitled to a discharge, unless the orders of February 13 justify his further detention. Wagner v. United States (C. C. A.) 3 F.(2d) 864. The validity of these orders is therefore the principal question for decision. The orders themselves show upon their face that they were entered by the court of its own motion, and it is conceded that there was no record evidence of any kind to justify or support the amendments.

"According to the generally accepted rule, the evidence to justify the entry of a judgment nunc pro tunc must be record evidence, that is, some entry, note, or memorandum from the records or quasi records of the court, which shows in itself, without the aid of parol evidence, that the alleged judgment was rendered." 34 C. J. 79.

This rule is supported by the overwhelming weight of authority. In United States v. Patterson, supra, the defendant was sentenced to imprisonment at hard labor for the term of five years upon each of three indictments, "said terms not to run concurrently." After having served a term of imprisonment for the full period of five years, the prisoner made application to Mr. Justice Bradley for a writ of habeas corpus. The learned judge held that the three sentences ran concurrently, because the order of sequence was not specified, and said:

"If there were any way in which the district court could amend the judgment, the case might perhaps be different. But I see no way in which it could do so without passing a new sentence, and that it could not do now, after the term has passed, and after one term of imprisonment has been suffered. What right would the court have now to determine that the expired term was due to any particular indictment more than to either of the others?

"I have carefully read the able opinion of the Supreme Court of New Jersey in the case of Gibbs v. State, 45 N. J. Law, 379, and agree to all that the court there says as to the right of a criminal court to extend its judgment and proceedings on the record in proper form, regardless of imperfections in the minutes of its clerk. But in the present case there are no materials in existence for altering the form of the judgment under consideration — at least nothing but what may rest in the bosom of the judge; and for him to resort to his memory at this day to alter the judgment would be to render a new judgment. It is unnecessary to say that the honorable judge of the district court would not adopt a proceeding so questionable and hazardous. The district attorney has supplied me with a certified copy, literatim, with all the erasures and interlineations of the rough minutes; but they exhibit nothing upon which the court could base any substantial alteration in the judgment as recorded."

The sentence before the court in that case was far more favorable to the contention of the government than are the sentences before this court, because there the sentence contained an express provision that the different terms should not run concurrently; whereas, the original sentences in this case contained no such provision. The government, and the court below, rely very largely upon Wight, Petitioner, 134 U. S. 136, 10 S. Ct. 487, 33 L. Ed. 865. There a motion for a new trial, after verdict of guilty, and...