Rice v. United States
| Decision Date | 03 August 1925 |
| Docket Number | No. 4597.,4597. |
| Parties | RICE v. UNITED STATES et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Marshall B. Woodworth and Frank J. Hennessy, both of San Francisco, Cal., for appellant.
Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal., for appellees.
Before HUNT, MORROW, and McCAMANT, Circuit Judges.
McCAMANT, Circuit Judge (after stating the facts as above).
It is well settled that when a defendant is convicted on more than one count, and separate sentences of imprisonment are imposed, these sentences will run concurrently, unless provision is made to the contrary in the judgment order. It has also been held repeatedly that the judgment order should indicate the sequence in which the terms of imprisonment are to be served. The authorities cited by appellant sustain his contentions in these respects, but appellees contend that the sentence imposed in this case is effective in imposing two successive terms of imprisonment of six months each, within the operation of the above rules.
Appellant was sentenced to imprisonment for six months on the first count and six months on the second count, "said judgments to run consecutively." The word "consecutively" is derived from the Latin verb consequi, "to go after," "come after," "succeed." In the Century Dictionary "consecutively" is defined as "in a consecutive manner," "in regular succession," "successively." In the same work "consecutive" is defined as "succeeding one another in regular order."
On familiar rules of construction we cannot reject the word "consecutively" as surplusage in the sentence imposed on appellant. We must presume that it was inserted in the order advisedly, and must give it a meaning. In the sentence preceding that in which the word is used, the court adjudges "that Harry Rice pay a fine in the sum of $1,000 and be imprisoned for the period of six months on the first count of the information, and be imprisoned for the period of six months on the second count of the information." The word "consecutively" is referable to the portion of the order above quoted. Provision is made for two terms of imprisonment; the first thereof based on appellant's conviction under the first count in the information, and the second on his conviction under the second count. The context makes it clear that the word "consecutively" is used as equivalent to "successively," "succeeding one another in regular order"; that is to say, the term of imprisonment on the first count is to be first served, and then the term of imprisonment on the second count is to "succeed" or "come after." The words "successive" and "consecutive" have been held to be synonymous. State v. Hitchcock, 124 Mo. App. 101, 106, 101 S. W. 117; Dever v. Cornwell, 10 N. D. 123, 86 N. W. 227, 230.
There is undoubtedly language to be found in the books which supports appellant's contention, but the authorities cited in his behalf, if read in the light of the facts involved in each case, are not in conflict with the construction which we place on the judgment order with which we are concerned.
In U. S. v. Patterson (C. C.) 29 F. 775, the sentence was as follows: "The court do order and adjudge that the prisoner, Oscar L. Baldwin, be confined at hard labor in the state's prison of the state of New Jersey, for the term of five (5) years upon each of the three indictments above named, said terms not to run concurrently." This order contained nothing with reference to the sequence of the terms of imprisonment; all three terms of imprisonment were imposed by the same language. The court held that the prisoner was entitled to his discharge at the expiration of five years.
In Daugherty v. U. S. (C. C. A.) 2 F. (2d) 691, the sentence was that defendant "be confined in the United States Penitentiary situated at Leavenworth, Kan., for the term of five (5) years on each of said three counts and until he shall have been discharged from said penitentiary by due course of law; said term of imprisonment to run consecutively and not concurrently." Here again the terms of imprisonment were not separately and successively imposed as in the case at bar; in other words, the context contained nothing to which the word "consecutively" could be applied. This comment is also applicable to the case of Haussener v. U. S. (C. C. A.) 4 F.(2d) 884, 887. The report of the case on the point with which we are concerned is meager, but it appears that the defendants were convicted on three counts and sentenced to imprisonment for six months on each of the counts, "said sentences of imprisonment to run consecutively." The sentences do not seem to have been separately imposed as in the case at bar, and the judgment order seems to have contained nothing indicating the sequence in which the terms were to be served.
In Re Jackson (D. C.) 3 MacArthur, 24, defendant was sentenced to 180 days' imprisonment on each of three charges in the police court at Washington. The prosecutions were separate and distinct; the sentences imposed in each case made no reference to the other cases. The court held that the terms ran concurrently.
Fortson v. Elbert County, 117 Ga. 149, 43 S. E. 492, is the same kind of a case. Fortson was...
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...Safeway. 'Successive' is synonymous with 'consecutive' [State v. Hitchcock, 124 Mo.App. 101, 105, 101 S.W. 117, 118(3); Rice v. United States, 9 Cir., 7 F.2d 319, 320; Ex parte Rice, D.C.Cal., 6 F.2d 167, 170-171] and means 'following each other or another without interruption or interval.'......
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