Ziebart v. Hunter, 3960.

• Decision Date: 03 November 1949
• Docket Number: No. 3960.,3960.
• Citation: 177 F.2d 847
• Parties: ZIEBART v. HUNTER, Warden.
• Court: U.S. Court of Appeals — Tenth Circuit

177 F.2d 847 (1949)

ZIEBART v. HUNTER, Warden.

No. 3960.

United States Court of Appeals Tenth Circuit.

November 3, 1949.

George T. Evans, Denver, Colo., for appellant.

Malcolm Miller, Assistant United States Attorney, Topeka, Kan. (Lester Luther, United States Attorney, Topeka, Kan., was with him on the brief), for appellee.

Before BRATTON and HUXMAN, Circuit Judges, and RICE, District Judge.

BRATTON, Circuit Judge.

The appeal in this case is from a judgment denying a petition for a writ of habeas corpus and remanding appellant to the custody of the warden of the federal penitentiary at Leavenworth, Kansas. No issue of fact is involved. Nine indictments were returned against appellant in the United States Court for Northern Texas. The criminal cases were numbered 1570 to 1578, both inclusive, on the docket of that court; and on October 8, 1937, sentences were imposed in all of the several cases. The sentence in Number 1571 was imprisonment for a term of five years "sentence to date from this date." The sentence in Number 1574 was imprisonment for a term of five years "to serve and not to run concurrently with the sentence imposed on this defendant in cause No. 1571-Cr." The sentence in each of the remaining cases was imprisonment for a period of one year and one day, "said sentence not to run concurrently with any other sentence this day imposed on this defendant."

It is the contention of appellant that the several sentences were so indefinite and uncertain that they must be construed as running concurrently; that treating them in that manner, appellant has served more than the time required; and that therefore he is entitled to immediate discharge from further confinement. If the several sentences be construed as running concurrently, they total five years and appellant has completed service of them. On the other hand, if they be construed as running consecutively, they total seventeen years and their service has not been completed. Where sentences are imposed on pleas of guilty or verdicts of guilty on several indictments, or on several counts in a single indictment, in the absence of some definite and specific provision that they shall run consecutively, each sentence beins to run at once and they all run concurrently. Subas v. Hudspeth, 10 Cir., 122 F.2d 85; Levine v. Hudspeth, 10 Cir., 127 F.2d 982, certiorari denied, 317 U.S. 628, 63 S.Ct. 39, 87 L.Ed. 507. But the trial court has authority in the exercise of its discretion to provide that its sentences shall run consecutively. United States v. Daugherty, 269 U.S. 360, 46 S.Ct. 156, 70 L.Ed. 309; Zerbst v. Walker, 10 Cir., 67 F.2d 667; Hode v. Sanford, 5 Cir., 101 F.2d 290.

Sentences in criminal cases should be reasonably definite, certain, and consistent in their several provisions. They should disclose on their face with fair certainty the intent of the trial court, but the elimination of every conceivable doubt is not requisite to their validity or enforcement. United States v. Daugherty, supra; Wall v. Hudspeth, 10 Cir., 108 F.2d 865; Subas v. Hudspeth, supra; Smith v. United States, 10 Cir., 177 F.2d 434.

In determining whether several sentences are to run consecutively or concurrently, they should be reasonably construed in accordance...