United States v. Bishop, 5889.

• Decision Date: 16 February 1931
• Docket Number: No. 5889.,5889.
• Citation: 47 F.2d 95
• Parties: UNITED STATES ex rel. CAMPBELL v. BISHOP, Morale Officer.
• Court: U.S. Court of Appeals — Fifth Circuit

47 F.2d 95 (1931)

UNITED STATES ex rel. CAMPBELL v. BISHOP, Morale Officer.

No. 5889.

Circuit Court of Appeals, Fifth Circuit.

February 16, 1931.

Lloyd C. Hooks and R. A. Hendricks, both of Miami, Fla., for appellant.

W. P. Hughes, U. S. Atty., of Jacksonville, Fla., for appellee.

Before FOSTER, Circuit Judge, and HUTCHESON and SIBLEY, District Judges.

SIBLEY, District Judge.

Willard E. Campbell was remanded to the penitentiary after hearing on habeas corpus, and appeals. The facts are as follows: On May 17, 1929, Campbell filed a plea of guilty to an indictment charging violation of section 37 of the Penal Code (18 USCA § 88). The original minute of that date, after reciting arraignment and plea, continues: "And now the defendant Willard Campbell being asked by the court if he had anything to say why sentence of the law should not be pronounced against him, and saying nothing sufficient, it is considered by the court that the United States of America do have and recover of you, Willard Campbell, the sum of $500.00, as fine imposed herein without costs and it is further ordered that you be delivered by the Marshal for this District to the Warden or other proper officer of the United States Penitentiary in Atlanta, Georgia, and that you be there confined for a full term and period of two years, beginning from the date of your delivery to said penitentiary. It is further ordered that the sentence of two years in the United States Penitentiary be suspended upon payment of the fine of $500.00." Campbell paid the $500 and was released. On July 25, 1929, he was arrested and brought before the court for inquiry into his conduct since the sentence; the proceedings reciting, "which sentence was suspended by the court upon the payment of the fine of $500.00, and the said defendant granted a parole in the custody of the United States Marshal for this District under promise of good behavior." After hearing witnesses, it was "ordered by the court that said parole is revoked instanter and that the Marshal of the United States District Court deliver the said Willard Campbell, defendant herein, to the United States Penitentiary at Atlanta, Georgia, to be there confined under the terms of the sentence previously imposed against the said Willard Campbell in this case under date of May 17th, 1929." Campbell accordingly went to the penitentiary. On November 22, 1929, the judge, after reciting that the minute of May 17, 1929, incorrectly set forth the sentence, ordered the clerk to so correct it as to conform to the sentence imposed as shown by the entry on his bench docket of that date. The clerk accordingly amended the minute of the sentence so that the last paragraph reads: "It is further ordered that the sentence of two years in the United States Penitentiary be suspended upon payment of the fine of $500.00 and that you be paroled to W. F. Fox, Deputy Marshal, and shall report to him every 30 days. Upon violation of any law parole to be canceled and remission to serve term." This correction was made in the absence of Campbell and without notice to him. On March 4, 1930, Campbell was brought from the penitentiary to stand trial in the same court on another charge, and while there brought this habeas corpus. He contends that his prison sentence is void (1) because there is no judgment by the court declaring him guilty; (2) because the indefinite suspension of the sentence was a nullity and voided the sentence; (3) the correction of the minute without notice to him was beyond the court's power; (4) the revocation of the parole was void because at that time he had not been convicted for any violation of law.

As to the first point, the words "it is considered by the court" are the technical common-law phrase of judgment. 3 Blk. Com. p. 396; 8 Cyc. p. 586(13). When they follow the recital of a plea or verdict of guilty and introduce a sentence thereupon, they import a judgment of regular conviction, and no additional judgment of guilt is necessary. Davis v. Utah, 151 U. S. 262, 14 S. Ct. 328, 38 L. Ed. 153; Pointer v. United States, 151 U. S. at page 418, 14 S. Ct. 410, 38 L. Ed. 208; Demolli v. United States (C. C. A.) 144 F. 363, 6 L. R. A. (N. S.) 424, 7 Ann. Cas. 121; 16 C. J. § 3012, 3074.

On the second point, if the sentence had stood as first entered by the clerk, it was lawful and valid in so far as it imposed imprisonment, but unlawful because beyond the authority of the court in so far as it was attempted to indefinitely suspend it. The judge might be required by mandamus to eliminate such suspension. Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355. It follows that without mandamus he could, as he later did, the defendant being present, eliminate the attempted...