United States v. Day

• Decision Date: 07 July 1931
• Docket Number: No. 401.,401.
• Citation: 51 F.2d 1019
• Parties: UNITED STATES ex rel. MIGNOZZI v. DAY, Commissioner of Immigration.
• Court: U.S. Court of Appeals — Second Circuit

51 F.2d 1019 (1931)

UNITED STATES ex rel. MIGNOZZI v. DAY, Commissioner of Immigration.

No. 401.

Circuit Court of Appeals, Second Circuit.

July 7, 1931.

Gaspare M. Cusumano, of New York City, for appellant.

George Z. Medalie, U. S. Atty., of New York City (Morton Baum, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

Mignozzi, the relator, a barber by trade, came to the United States from Italy as a boy of thirteen or fourteen. Since then he has always lived here, has married a woman born in this country, and has a child eleven years old. All his relatives are in this country; he has never become a public charge, except for eleven days in a hospital while sick of pneumonia. On June 15, 1925, he pleaded guilty to two indictments, one in a single count, the other in two, upon all of which he was sentenced generally by the District Court of the Southern District of New York to a term of seven years, the "sentence to run concurrently." The first indictment was for possessing on April 21, 1925, a counterfeit twenty dollar bill with intent to defraud; with him was indicted one Day, as an abettor. The first count of the second indictment was for abetting, along with Helen Prince, Day and Arthur Schieble, on April twentieth, one Bernard Prince, in passing another twenty dollar bill. The second count of the same indictment was for abetting, along with Day, Bernard Prince and Schieble, on April twenty-first, Helen Prince in the possession of three twenty dollar bills with intent to defraud. One of these was the same as that alleged to have been already passed by Bernard Prince on April twentieth.

The relator was ordered deported as an alien who had been "sentenced more than once to * * * a term of imprisonment" of one year or more (section 155, title 8, U. S. C. 8 USCA § 155); and this is the only question involved. We held in Johnson v. U. S. ex rel. Pepe, 28 F.(2d) 810, when an alien was sentenced to consecutive terms of one year for separate arsons, committed at different times and of different buildings, that it made no difference that the crimes were prosecuted in a single indictment. To this we adhere. The Ninth Circuit went farther in Nishimoto v. Nagle, 44 F.(2d) 304, and sustained a deportation where an alien in California had issued five fraudulent cheques at separate times, had been prosecuted for these offenses under several counts in one indictment, and had been sentenced upon each count, the sentence to be executed concurrently, as here. The court relied in part upon the peculiar system of punishment obtaining in California, by which the parole board of that state may deal with such sentences separately, but in addition held that two convictions were enough, provided that there was a formal sentence on each. Sibley, C. J., in Opolich v. Fluckey, 47 F.(2d) 950, held the opposite in a case which, so far as we can see, is the same as that at bar; though he supposed that to do so he must decline to follow Johnson v. U. S. ex rel. Pepe, supra. With these exceptions we have not found any decisions dealing with the question.

Congress might have made the test merely the conviction for any shameful crime, or conviction for such a crime if a sentence of one year might be imposed. Either would have embodied an intelligible policy, but neither was chosen. On the contrary, a judge must actually sentence the alien to imprisonment for a year, and thus indicate that the particular circumstances of the offense warrant so much reprobation. If the alien has lived here for five years, the judge must do this twice. We agree that each count in an indictment, like each indictment itself, is a separate charge, and that nothing is lost or gained by the form of pleading adopted. Moreover, there must be a judgment upon each charge, however pleaded, in order to dispose of it; the only judgment in a criminal case is the sentence; procedurally a general sentence to "run concurrently" is a separate sentence on each count. We are as clear, however,...