Wampler v. Hill, 74.
| Decision Date | 31 July 1935 |
| Docket Number | No. 74.,74. |
| Parties | WAMPLER v. HILL, Warden. |
| Court | U.S. District Court — Western District of Pennsylvania |
Thomas M. Wampler, of Lewisburg, Pa., in pro. per.
Bernard J. Flynn, U. S. Atty., of Baltimore. Md., and Herman F. Reich, Asst. U. S. Atty., of Sunbury, Pa., for defendant.
The petitioner, Thomas M. Wampler, was tried and convicted upon an indictment in the United States District Court for the District of Maryland, for a violation of Income Tax Laws (Revenue Act 1928, § 146, USCA tit. 26, § 2146). The sentence of the court was: "That the traverser pay a fine of Five thousand dollars and be imprisoned in the United States Northeastern Penitentiary at Lewisburg, Pennsylvania, for Eighteen months on each count of the Indictment; said terms of imprisonment to be computed as beginning this 28th day of December, 1933; the fines to be cumulative and the terms of imprisonment to run concurrently; and that the traverser pay the costs of prosecution." In the commitment, which was issued, the clerk included in the judgment the following: "and in default of payment of said fines and costs, he stand further committed until the payment of said fines and costs, or until discharged by due process of law." The term of imprisonment specified in the judgment was duly served by the petitioner, and expired on the 14th day of July, 1935.
On July 23, 1935, an application was filed by the petitioner for a writ of habeas corpus to be directed to Henry C. Hill, warden of the United States Northeastern Penitentiary. The writ was issued and ordered returnable July 26, 1935. On the return day, the attorney for the United States appeared and filed a motion to dismiss on the ground that the petitioner was attempting to use the writ of habeas corpus as a substitute for a writ of error, and for other reasons. At the same time, the United States attorney filed a statement with the court requesting that the motion to dismiss be treated also as an answer without prejudice to the motion to dismiss. As, in my opinion, the motion to dismiss is without merit, I shall proceed immediately to consider on merits.
As already noted, the judgment contained no direction for further imprisonment on account of the fine. The clerk inserted in the commitment the clause, "and in default of payment of said fines and costs, he stand further committed until the payment of said fines and costs, or until discharged by due process of law."
It has been held that, under section 1041, Revised Statutes of the United States (18 USCA § 569), it is discretionary with the court to order, or not to order, a defendant imprisoned in case of his failure to pay a fine, and that, when the court does not order such imprisonment, that part of the commitment referring to further commitment until the payment of the fine is void. Boyd v. Archer, 42 F....
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Hill v. United States Wampler
...his imprisonment had expired and that his detention had become unlawful. The petition was granted, and the relator discharged. Wampler v. Hill, 11 F.Supp. 540. The warden of the penitentiary appealed to the Circuit Court of Appeals for the Third Circuit. That court, after certifying the fac......
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