Rutledge v. United States, 11101.
| Decision Date | 27 December 1944 |
| Docket Number | No. 11101.,11101. |
| Parties | RUTLEDGE v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Hulan Rutledge, of Leavenworth, Kan., in pro. per., for appellant.
Malcolm E. Lafargue, U. S. Atty., and John A. Patin, Asst. U. S. Atty., both of Shreveport, La., for appellee.
Before HOLMES, McCORD, and LEE, Circuit Judges.
The Federal Escape Act, 18 U.S.C.A. § 753h, provides that any person in federal custody under sentence, or in federal custody pursuant to lawful arrest, who escapes or attempts to escape from such custody, shall be guilty of an offense; and that the sentence imposed thereunder "shall be in addition to and independent of any sentence imposed in the case in connection with which such person is held in custody at the time of such escape." It further provides that if the person is under sentence at the time of the offense, the sentence imposed for the escape shall begin at the expiration of or legal release from the sentence being served.
The questions presented by this appeal are (1) whether one who attempts to escape while in federal custody pursuant to lawful arrest may for such offense be given a separate sentence that runs concurrently with the sentence imposed for the offenses that caused his arrest, and (2) if not, whether the court has power, during the same term but after service of the sentences has begun, to correct the sentence imposed so as to increase the punishment.
Appellant, who was in custody pending the action of the grand jury upon charges that he had violated the Mann Act, 18 U.S.C.A. § 397 et seq., the Dyer Act, 18 U.S.C.A. § 408, and the conspiracy statute, 18 U.S.CA. § 88, attempted to escape. The grand jury subsequently returned one indictment charging him with the offenses for which he was held, and another indictment charging that he violated and conspired to violate the Federal Escape Act. Pleas of guilty were entered to both indictments.
On October 7, 1942, appellant was given a three-year sentence under the first count of the first indictment, said sentence to run concurrently with a two-year sentence given under the second indictment; and the imposition of sentence under the remaining counts of the first indictment was suspended. Under the second indictment, appellant was sentenced to two years in the penitentiary, said sentence to run concurrently with the three-year sentence under the first indictment. On March 15, 1943, after appellant had begun the service of his sentences, he was brought before the court and a "corrected judgment of sentence" on the second indictment was entered over his protest, which sentence in part provided: "It is hereby ordered and adjudged that the sentence heretofore imposed be corrected so as to comply with the statute and provide that the defendant, having been found guilty of said offenses, is hereby committed to the custody of the Attorney General or his authorized representative for the period of two years on the first count of said indictment, said sentence to begin upon the expiration of the three-year sentence imposed" under the...
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