Zerbst v. Lyman
| Decision Date | 10 February 1919 |
| Docket Number | 3278. |
| Citation | 255 F. 609 |
| Parties | ZERBST, Warden U.S. Penitentiary, v. LYMAN. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Hooper Alexander, U.S. Atty., and J. W. Henley, Asst. U.S. Atty both of Atlanta, Ga., for appellant.
W Carroll Latimer, of Atlanta, Ga., for appellee.
Before WALKER and BATTS, Circuit Judges, and SHEPPARD, District Judge.
Pending an appeal from a judgment of conviction in the Southern District of California, Lyman, appellee, was convicted of another crime in the Southern district of New York, and committed to the United States penitentiary at Atlanta. The judgment of the California court was affirmed (Lyman v United States, 241 F. 945, 154 C.C.A. 581), and a commitment was issued, reciting the conviction of Lyman; that he had been ordered to be imprisoned in the state penitentiary at San Quentin, Cal.; that the judgment was affirmed; that the Attorney General had designated the penitentiary at Atlanta as the place of confinement of defendant, and directing the marshal to deliver Lyman into the custody of the warden of the Atlanta penitentiary forthwith, and the warden to detain him for a period of one year and three months, 'in accordance with the judgment and order. ' The marshal transmitted this commitment to the warden with a letter, to the effect that 'I am inclosing you official commitment for John Grant Lyman, to become effective upon completion of his present term. ' The letter contained a receipt for the prisoner, which was signed by the warden and returned to the marshal. At the time the commitment was received Lyman was serving the New York sentence. Upon the expiration of the 15 months, dating from the day of the receipt of the commitment, Lyman sued out a writ of habeas corpus. The New York sentence had in the meantime expired, but 1 year and three months had not thereafter elapsed. The District Judge held that the sentences ran concurrently, and that the applicant was entitled to his release.
After the receipt of the California commitment, the warden, already in custody of the prisoner, held him under both commitments. The time of the sentence having elapsed between the receipt of the commitment and the date of the application for the writ of habeas corpus, the only conclusion to be reached by the trial court was that the applicant had served the term. The marshal, in sending the commitment, had stated that 'the punishment was to become effective upon completion of his present term. ' There is nothing in the commitment which indicates a time for the beginning of the punishment, other than that the marshal was to forthwith deliver Lyman into the custody of the warden at Atlanta. This commitment was the measure of the authority of the warden, and was properly the basis of the action of the District Judge upon the application for habeas corpus. The marshal had no authority to change the terms of the commitment, or determine when the punishment should begin.
It is argued that it was manifest that the California court intended that the punishment should begin after the expiration of the term imposed by the New York court. This nowhere appears. It is true that, if the original order of imprisonment in the state penitentiary at San Quentin had not been changed, the imprisonment could not have begun until the prisoner had been released from the Atlanta penitentiary. But there is nothing to indicate that the court intended to do anything other than that which was done.
It could well be assumed that the court intended, if it can be assumed that it had knowledge of the pendency of another sentence, that the ordinary effect should follow. Ordinarily, two or more sentences run concurrently, in the absence of specific provisions in the judgment to the contrary. United States v. Patterson (C.C.) 29 F. 775; In re Breton, 93 Me. 39, 44 A. 125, 74 Am.St.Rep. 335; 1 Bishop, Crim. Procedure, 1327, 1310. This rule seems to apply where the conviction is had in different courts. Ex parte Green, 86 Cal. 427, 25 P. 21; Ex parte Black, 162 N.C. 457, 78 S.E. 273; Ex parte Gafford, 25 Nev. 101, 57 P. 484, 83 Am.St.Rep. 568. The case cited by appellant of Hightower v. Hollis, 121 Ga. 160, 48 S.E. 969, if not distinguishable by reason of the nature of the punishment, is apparently in conflict with the weight of authority.
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