Yavorsky v. United States

• Decision Date: 01 August 1924
• Docket Number: No. 3100.,3100.
• Citation: 1 F.2d 169
• Parties: YAVORSKY v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

1 F.2d 169 (1924)

YAVORSKY v. UNITED STATES.

No. 3100.

Circuit Court of Appeals, Third Circuit.

August 1, 1924.

Leon M. Levy and Joseph F. Gunster, both of Scranton, Pa., for appellant.

Andrew B. Dunsmore, U. S. Atty., of Wellsboro, Pa., A. A. Vosburg, Asst. U. S. Atty., of Scranton, Pa., and Herman F. Reich, Asst. U. S. Atty., of Sunbury, Pa.

Before WOOLLEY and DAVIS, Circuit Judges, and GIBSON, District Judge.

DAVIS, Circuit Judge.

The United States attorney filed a criminal information against Yavorsky, hereafter called defendant, for the illegal sale of one pint of "moonshine whisky" containing more than one-half of 1 per centum of alcohol by volume. He pleaded guilty This was the first offense of which defendant had been convicted, and the judge inadvertently imposed upon him both a fine of $100 and imprisonment of 60 days in the county jail of Lackawanna county. He paid the fine in full, and after he had served five days in prison it was brought to the attention of the judge that he could not impose both a fine and imprisonment on conviction or plea of guilty for the first offense. He entered the following order:

"October 27, 1923. The court being satisfied that both fine and imprisonment is unauthorized, before payment of the fine into the treasury of the United States, the imposition of the fine is remitted and the marshal is directed to refund to the prisoner."

The defendant refused to accept return of the fine and filed a petition for writ of habeas corpus, which was denied, and he appealed to this court.

It is admitted that the proper procedure by which to test the validity of the action of the District Court is by the writ of habeas corpus. Section 29 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½p), provides that:

"Any person who manufactures or sells liquor in violation of this title shall for a first offense be fined not more than $1,000, or imprisoned not exceeding six months, and for a second or subsequent offense shall be fined not less than $200 nor more than $2,000 and be imprisoned not less than one month nor more than five years."

The question of whether or not a court in the same term, in a civil proceeding, has power to set aside an improvident order obtained by fraud (Doss et al. v. Tyack et al., 14 How. 55 U. S. 297, 312, 14 L. Ed. 428), or for proper cause to set aside a judgment rendered on confession (Basset v. United States, 9 Wall. 76 U. S. 38, 41, 19 L. Ed. 548), or to set aside at the ensuing term of court the order of the court allowing an appeal which was never perfected when motion for so doing was made in the same term (Goddard v. Ordway, 101 U. S. 745, 25 L. Ed. 1040), or in a criminal case to set aside the sentence of a prisoner to a house of correction which was not allowed to receive federal prisoners and resentence to another for a shorter term (In re Graves D. C. 117 Fed. 798), is not here involved. The general power of a court over its own judgments, orders, and decrees in both civil and criminal cases during the existence of the term at which they are first made is undeniable. Ex parte Lange, 18 Wall. (85 U. S.) 163, 21 L. Ed. 872; Goddard v. Ordway, supra.

The question here is whether or not the learned District Judge could remit the fine and continue the prison sentence, after the fine had been paid to the marshal of the district, but not paid by him into the treasury of the United States, and defendant had served five days' imprisonment. In other words, had the defendant, by the payment thus made, fully suffered one of the alternative punishments to which alone the law subjected him, and, if he had, was the power of the court to punish further gone?

Both the defendant and government rely upon the case of Ex parte Lange, supra. In that case the defendant, Lange, was indicted under Act June 8, 1872, § 290, 17 Stat. 320, for stealing, etc., mail bags. He was tried and convicted. The punishment for the offense as provided by the statute was imprisonment for not more than one year or a fine of not less than $10 nor more than $200. The judge sentenced Lange to undergo imprisonment for one year and to pay a fine of $200. He was committed to jail in execution of the sentence the day it was imposed, November 3, 1873, and paid the fine the following day. On November 7th the clerk paid the fine into the treasury of the United States. The next day, November 8th, he was brought, on writ of habeas corpus, before the same judge, who entered an order vacating the former judgment, and again sentenced the prisoner to...