United States v. Peeke

• Decision Date: 22 April 1907
• Docket Number: 58.
• Citation: 153 F. 166
• Parties: UNITED STATES v. PEEKE.
• Court: U.S. Court of Appeals — Third Circuit

153 F. 166

UNITED STATES v. PEEKE.

No. 58.

United States Court of Appeals, Third Circuit.

April 22, 1907

John P Nields, for appellant.

Scott Scammell, for appellee.

Before GRAY and BUFFINGTON, Circuit Judges, and HOLLAND, District judge.

HOLLAND District Judge.

This is an appeal from an order of the District Court of New Jersey discharging Erastus Carl Benedict Peeke from the state prison at Trenton on a writ of habeas corpus. Peeke was tried and convicted in the United States Court in the District of Delaware on the third, fourth, fifth, sixth, and sixteenth counts of an indictment charging him under section 5440, Rev St. (U.S. Comp. St. 1901, p. 3676), with the crime of conspiring to commit an offense prohibited in section 5501 Rev. St. (U.S. Comp. St. 1901, p. 3709).

On August 2, 1904, the following judgment was pronounced against him:

'And now, to wit, this second day of August, A.D. nineteen hundred and four, the district attorney moves for judgment. And it appearing to the court that the jury has found the said Erastus Carl Benedict Peeke, alias Benedict Peeke, guilty in manner and form as he stands indicted in the third, fourth, fifth, sixth, and sixteenth counts of the indictment returned against him in the above-entitled cause on the twenty-fourth day of February, A.D., nineteen hundred and four, it is considered and adjudged by the court now here that you, Erastus Carl Benedict Peeke, alias Benedict Peeke, do forfeit and pay to the United States a fine of three thousand dollars and costs of this prosecution; and further that you, Erastus Carl Benedict Peeke, alias Benedict Peeke, be imprisoned in the New Jersey State Prison at Trenton, New Jersey, for the term of five years, beginning on this day and ending on the first day of August, A.D. nineteen hundred and nine. And it is further considered, adjudged, and ordered by the court now here that you, Erastus Carl Benedict Peeke, alias Benedict Peeke, be now committed to the custody of the marshal of the United States for the district of Delaware in order that the foregoing sentence may be carried into execution.'

After sentence, on the same day, he was delivered to the keeper of the New Jersey state prison, where he was confined as a prisoner until April 16, 1906, the date of his discharge.

In his petition for the writ he stated that sentence was imposed upon him 'for a term of five years, beginning on this day (to wit, 2d day of August, 1904), and ending on the 1st day of August, 1909, and that, 'according to the provisions of section 5440 and the conviction thereunder, the court was limited in its power to punish * * * to a period of imprisonment of not more than two years,' and as a consequence the petitioner insists that he is unlawfully detained, and should be discharged. The prisoner was entitled to a reduction of time for good behavior provided for by section 5540 of the Revised Statutes. With this credit to which he is entitled a two-year sentence expired on the 11th day of March, 1906, upon which day he would be entitled to be discharged, if his contention be right as to the unlawfulness of the sentence imposed. The entry of the decree was withheld from April 6th to the 16th to allow time for the correction of the judgment by the court imposing the sentence, if the records warranted a correction. There being no amendments made, the prisoner upon the latter date was discharged, from which judgment an appeal was taken to this court, and a number of errors assigned, all of which can be disposed of in the consideration of the objections: (1) The Court erred in holding that the sentence was void except for the period of two years; and (2) the remedy of the prisoner, if any, was by writ of error, and not by habeas corpus. The petitioner was convicted under section 5440 for conspiracy to violate section 5501, in five different counts in the same indictment, and, it is contended, for five distinct offenses for each of which offense section 5440 authorized the imposition of a maximum term of imprisonment of two years. The authorities cited by Judge Lanning are sufficient to show that cumulative sentences can be imposed in the federal courts (Ex parte Peeke (D.C.) 144 F. 1018), but, in order that a sentence should have this effect, it must be imposed in that form (United States v. Patterson (C.C.) 29 F. 775). Where there is a general verdict on two or more counts of an indictment charging crimes which are of the same character, although growing out of totally distinct and separate...