United States v. Hoffman

• Decision Date: 14 October 1925
• Docket Number: No. 5179.,5179.
• Parties: UNITED STATES v. HOFFMAN et al.
• Court: U.S. District Court — Northern District of Illinois

13 F.2d 269 (1925)

UNITED STATES v. HOFFMAN et al.

No. 5179.

District Court. N. D. Illinois, E. D.

October 14, 1925.

John E. Byrne, of Chicago, Ill., for the United States.

Alfred S. Austrian, of Chicago, Ill., for defendants.

WILKERSON, District Judge.

Respondents were cited to show cause why they should not be punished for misbehavior as officers of this court in their official transactions, and for disobedience of the writs and commands of this court in the cases of United States v. Terrence Druggan and United States v. Frank Lake. They answered the rule, and the issues made and the evidence adduced thereunder have been presented to and heard by the court.

Druggan and Lake were found guilty, on July 11, 1924, of violating an injunction issued by this court in a suit under the National Prohibition law, and were each sentenced to serve one year in the county jail of Cook county, Ill., and to pay a fine of $1,000. The judgments were affirmed by the Circuit Court of Appeals. ___ F.(2d) ___. Lake was committed to jail on October 11, 1924, and Druggan, on November 11, 1924. The writs of commitment are directed to the marshal of the Northern district of Illinois and to the keeper of the county jail at Chicago, Ill. They command the marshal to convey the respondents to the Cook county jail and the keeper of the jail to receive the respondents into the Cook county jail and there safely keep them until the expiration of the sentences, or until the respondents be discharged therefrom by due course of law. The returns on the writ for Lake are as follows:

"Received of Robert R. Levy, marshal of the United States for the Northern district of Illinois, the body of the within named prisoner this 11th day of Oct. A. D. 1924.

"Rec'd 10-11-24 "W. H. Westbrook.

"By virtue of this writ, I conveyed the prisoner therein named to the jail of Cook county, Illinois, and there delivered him to the keeper thereof the 11th day of Oct., A. D. 1924.

"Robert R. Levy, U. S. Marshal "Marshal fees, 50¢. "By Frank Farrell, Deputy."

The returns on the writ for Druggan are as follows:

"Received of Robert R. Levy, U. S. Marshal for the Northern dist. of Ill's, the body of the within named prisoner, Terrence (Terry) Druggan, this 11th day of Nov., A. D. 1924.

"W. H. Westbrook, Supt. Cook County Jail "Per Harry Fulton, Jail Clerk.

"By virtue of this writ I committed to the Cook county jail the body of the within named prisoner this 11th day of Nov., A. D. 1924.

"Robert R. Levy, U. S. Marshal "By Frank Farrell, Deputy. "Marshal fees: 1 service, 50¢."

In the case of Druggan, the evidence establishes beyond doubt that there was a flagrant violation of the command of the writ to keep him in the jail until the expiration of his sentence, or until his discharge by due course of law. Shortly after Druggan was received into the jail, a dentist, Franklin R. Percival, was permitted to give him treatments in the jail. Early in January, 1925, it was arranged that Druggan should be taken to the dentist's office under guard for treatments. It is shown that he was out of the jail, ostensibly to receive dental treatments, about 90 times. He usually remained at the dentist's office from 10 o'clock in the morning until 3 o'clock in the afternoon, and sometimes longer. His meals during this period were brought to him at the dentist's office. The dentist testified that Druggan was very nervous, and that he could work on his teeth for only a few minutes each day. Druggan spent most of his time in the smoking room of the dentist's suite. Druggan paid this dentist $3,200.

It further appears that Druggan was permitted to go to his apartment at 999 Lake Shore Drive at night. Sometimes he remained there during the entire night, and returned to the jail in the morning without a guard. The number of the visits to the apartment is not definitely shown. According to the evidence there were at least 6 of them, and probably not more than 30. Druggan was taken also several times to his country home near Lake Zurich. Druggan was taken to the safety deposit vaults of the Continental & Commercial Bank Building three times and permitted to transact business there. On August 15, 1925, Druggan was released from the jail and remained away 3 days. He returned and was again released on the 19th of August. Upon the advice of his attorneys, he returned to the jail on the 21st of August, since which date he has been confined, either in the custody of the marshal or in the jails of Cook and De Kalb counties.

In the case of Lake, about 12 visits to the dentist's office were permitted. The dentist received $1,500 for the services to Lake. Lake was released from the jail on the 20th day of July. This was 82 days before the expiration of his sentence and 22 days before he was entitled to a discharge, if he were given the allowance for good time for which provision is made in the Act of June 21, 1902, c. 1140, § 1 (32 Stat. 397 Comp. St. § 10532), for prisoners convicted of offenses against the laws of the United States.

At common law it was a misdemeanor for a sheriff or jailer having lawful charge of a prisoner to voluntarily or negligently permit him to depart from his custody, no matter how short a time the departure might be. An escape is defined to be voluntarily or negligently permitting a person lawfully confined in jail to leave the prison where he is confined, before he is entitled by law to be released therefrom. Ex parte Shores (D. C.) 195 F. 627, 630.

Section 5409, R. S. (Comp. St. § 10308), provides: "Whenever any marshal, deputy marshal, ministerial officer, or other person has in his custody any prisoner by virtue of process issued under the laws of the United States by any court, judge, or commissioner, and such marshal, deputy marshal, ministerial officer, or other person voluntarily suffers such prisoner to escape, he shall be fined not more than two thousand dollars, or imprisoned * * * not more than two years, or both."

Section 90 of the Criminal Code of Illinois (Smith-Hurd Rev. St. Ill. 1923, c. 38, § 226) provides that a sheriff or jailer who voluntarily suffers the escape of any convict in his custody shall be imprisoned in the penitentiary not less than one nor more than ten years. An officer charged with the duty under a writ of court to continuously imprison a convict for a term, who willfully fails in the performance of that duty, is guilty, not only of contempt of the court committing the prisoner, but of the offense of escape, whether tested by state or federal law. Re O'Rourke (D. C.) 251 F. 768.

In cases where a person is committed to prison pursuant to his conviction of a prison offense, the jailer has no discretion (except in cases of emergencies) but to obey the warrant of commitment. He may not rightly consult his own convenience, nor that of the prisoner, and permit the latter to leave the jail and return thereto at pleasure. Persons are committed to jail for the purpose of imposing upon them the penalties they have incurred because of their violation of the law; and it is not for the jailer to remit any part of that punishment. If sickness or other circumstances should arise, which make it proper to grant the prisoner some indulgences, the jailer must apply to the proper authorities for permission to grant the same.

In Clap v. Cofran, 10 Mass. 373, the jailer had permitted the prisoner to occupy the jailer's apartments frequently during the night, which he had no authority to do, and it was held that the jailer had permitted a voluntary escape. The jailer attempted to justify his conduct upon the ground that it had been the custom or practice of jailers for a long time to permit certain classes of prisoners to occupy during the nighttime the apartments occupied by the jailer and his family, and to take their meals with them. But the court held that the fact that the jailer had for a long time permitted and indulged his prisoners in the privilege of spending their evenings in the kitchen in his dwelling did not excuse the jailer for the escape, and that any partial indulgence depending upon the favor of his jail keeper, was an abuse of his authority, which could not be justified by its continuance for any length of time.

The admitted facts in this case show that the writs for both Lake and Druggan were disobeyed. The disobedience, particularly in the case of Druggan, was of such a character as to make a farce of the process of this court. For the violations of the law of the state and the United States which may be involved, the respondents, of course, are not on trial. For the disregard of the orders of commitment, those who are responsible are amenable to this court in this proceeding, and it remains to fix the legal responsibility for such disobedience.

The United States does not maintain regular places in the several states in which to confine persons sentenced for other than penitentiary offenses, but uses the state jails for that purpose. The several states, no doubt, may refuse to allow the use of their jails and prisons for such purpose, and, should they do so, the United States court may not lawfully commit persons to such jails, and the jailers cannot be required to receive them.

The Congress, on September 23, 1789, adopted a resolution requesting the Legislatures of the several states to pass laws making it the duty of the keepers of their jails to receive and safely keep therein, under the same penalties as in the case of state prisoners, all prisoners committed under the authority of the United States until they shall be discharged by due course of the laws thereof; the United States, however, to pay for the keeping and support of such prisoners as they shall commit to such jails (1 Stat. 96).

On March 3, 1791, the Congress passed another resolution, which, after referring to the resolution of September 23, 1789, provides that, in case any state shall not comply with the request in the resolution of September...