United States v. De Maurez, C-15097.

• Decision Date: 12 July 1943
• Docket Number: No. C-15097.,C-15097.
• Citation: 54 F. Supp. 102
• Parties: UNITED STATES v. DE MAUREZ.
• Court: U.S. District Court — District of Oregon

54 F. Supp. 102

UNITED STATES v. DE MAUREZ.

No. C-15097.

District Court, D. Oregon.

July 12, 1943.

Carl C. Donaugh, U. S. Atty., and J. Mason Dillard, Asst. U. S. Atty, both of Portland, Or., for plaintiff.

Leroy Lomax, of Portland, Or., for defendant.

JAMES ALGER FEE, District Judge.

Raymond O. DeMaurez has forwarded to the Clerk of this court a motion "to amend and correct the judgment sentence now of record" in this cause "to make the same speak the truth" and to "conform to statute in such cases made and provided". The Clerk of this court did not place the motion on file as it was not accompanied by a filing fee. No motion has been filed to allow DeMaurez to proceed in forma pauperis on this motion. The matter was presented by Mr. Leroy Lomax, who was counsel by appointment of the court for DeMaurez in the trial, on the record. The court has not power to pass upon a motion which has not been filed in regular order.

However, when a suggestion is made to the court that a sentence in a criminal case exceeds the limits provided by the statute and is thereby to that extent void, a court is in duty bound to consider the matter to determine whether or not justice has been done.

The contention of DeMaurez may be well stated in the language of the Circuit Court of Appeals of the Ninth Circuit¹ in dealing with a previous complaint of the same petitioner as follows: "Petitioner claims that the sentence of ten years upon the first count was void because in excess of the jurisdiction of the court and that he had already served the sentence imposed upon the second count of the indictment, counting allowances for good conduct, as provided by 18 U.S.C.A. § 710. Petitioner contends that the trial court assumed that the offenses charged were violations of 18 U.S.C.A. § 73, Cr.Code § 29, whereas, he claims that the offenses charged in the indictment were forging and uttering the endorsement upon a pension check of the United States and that the penalty for such offenses provided by ch. 301, § 4, 37 Stat. 313, 38 U.S.C.A. § 128, is a maximum of five years and a fine of $1,000 for each offense." The same contention is raised by the present motion.

DeMaurez was tried and convicted in the United States District Court for the District of Oregon, before the writer of this opinion as District Judge and a jury, in 1937. Counsel was provided for defendant by appointment.

During this trial, a motion for dismissal was made by counsel for defendant upon the ground that the indictment did not state a crime. The court was impressed by the argument and the opinion cited and stated that if the case were still the law it was probable motion should be granted. The United States Attorney cited Prussian v. United States, 282 U.S. 675, 51 S.Ct. 223, 75 L.Ed. 610. This case holds that the indictment was properly drawn under 18 U.S.C.A. § 73. The court therefore refused to dismiss the indictment thus deliberately deciding the point now raised by this motion as to the application.

After a verdict of conviction, sentence was imposed on Count One of the indictment, a fine of $500 and imprisonment for a term of ten years and from and after the expiration of said term, on Count Two of the indictment defendant was to be imprisoned for a term of five years and to pay a fine of $500, a total sentence of 15 years imprisonment and $1,000 fine. The court at that time determined that the statute relating to the forging and uttering of government documents, 18 U.S.C.A. § 73, was applicable; that forging and uttering under that statute constituted separate and distinct crimes for which cumulative penalties could be imposed, and that, therefore, a maximum penalty of imprisonment for 20 years and a fine of $2,000 could have been upheld. These rulings also were made following the opinion in the case of Prussian v. United States, 282 U.S. 675, 51 S.Ct. 223, 75 L.Ed. 610.

The court took into consideration in sentencing DeMaurez, the following record:

1-3/24. Chehalis, Washington PD. # —. as Oswald DeMaurez; forgery. Released.

12-3/26. Spokane, Washington PD # 6739, as Oswald Raymond DeMaurez. Stolen property in possession.

1-29-27. Washington State Reformatory #5378, as Oswald DeMaurez: Grand Larceny from Spokane County for 1 to 15 years. Paroled 1-5/28. Violated parole 3-5/28.

3-5-28. Roseburg, Oregon # — as Oswald Raymond DeMaurez; forgery.

6-9/28. Oregon State Pen. #10333, as O. R. DeMaurez; uttering and publishing a forged bank check, from Douglas County for 3 years. Dis. 6-7/30.

4-1/32. San Francisco, California PD. #46863, as Oswald Raymond DeMaurez; vagrancy. Disposition not given.

It will be noticed that DeMaurez already had been sentenced once to a term the high limit of which was 15 years, but the judgment was not carried out. Inasmuch as this first sentence was pronounced under a statute providing for an indeterminate period under the supervision of an administrative board, the results of such legislation may be checked. If instead of releasing DeMaurez he had been retained until he actually had been rehabilitated, society would have been spared the pursuit, apprehension and conviction for two other known offenses. Instead, the Washington board did not have DeMaurez returned after expiration of his sentence in Oregon notwithstanding the fact that they were thereby advised that he was a recidivist.

This is an example of returning a man to society in such a manner that he will be perfectly positive that whatever he does and however often he commits crime, he will only be confined for a short length of time. The machinery of criminal justice in this country is clogged with men who have each been convicted of a large number of crimes and who have been similarly convinced that in their cant they can "pay their debt to society" for any known crime in a minimum of time.

At the time of the trial and sentence of DeMaurez in this court, the government was sending numerous checks of Works Progress Administration throughout the state of Oregon. Many of these checks were being left in open mail boxes and constituted an invitation to persons predisposed to forgery to commit such violations of the statute. In order to assure persons so disposed to commit the crime of forgery that violations of this type would not be condoned, the court at that period imposed not only this sentence but also severe sentences for like offenses. This policy was effective and within a short time thereafter, violations of this sort in the District of Oregon practically ceased.

Vindictive justice is not an end. Punishment should be a corrective and the end should be to restore a man to society, when he has evinced tendencies which indicate he will be reasonably sure not to commit crime again. As many theorists can demonstrate, the American penal system is indefensible. But it must be remembered, at present this much maligned system is the only bulwark of society against the depredations of men some of whom are irreclaimable. The best safeguard against injustice to the individual is an utterly fair trial, a proper sentence and certainty of punishment. Thereafter, the man should be restored to society when his criminal tendencies have been purged.

A sentence cannot be judged outside its context. This...