An appeal directly to this Court from the Circuit Court denying
a writ of habeas corpus is proper where the petition contains
averments that the imprisonment is in violation of the federal
Constitution.
A sentence at hard labor in the state prison does not commence
until the person sentenced is taken to the prison, and if, by his
own efforts to obtain a review and reversal of the judgment, he
secures a supersedeas pending appeal, his detention meanwhile in
the county jail cannot be counted as a part of the time of
imprisonment in the state prison.
Although, for some purposes, different counts in an indictment
may be regarded as in effect separate indictments, where there is
nothing to show
Page 194 U. S. 541
that the court was without jurisdiction to impose a sentence of
two years for the crime of which the defendant was convicted, this
Court will not presume that the sentence was for not exceeding one
year on each of the two counts on which he was convicted, thus
making the sentences in the state prison at hard labor illegal
under Rev.Stat. §§ 5541, 5546, 5547.
In re Mills,
135 U. S. 263,
distinguished.
A writ of habeas corpus to release the petitioner from
imprisonment cannot be made to do the office of a writ of error,
and this Court will not on such a proceeding review errors of law
on the part of the trial court.
This Court may take judicial notice of its own records in
proceedings formerly had by the parties to proceedings before
it.
Dimmick, the appellant, presented his petition for a writ of
habeas corpus to the Circuit Court of the United States, Northern
District of California. The petition was denied, and an appeal
taken to this Court from the order denying the application. The
appellant alleged in his petition for the writ that he was
unlawfully imprisoned in the state prison of the State of
California; that the imprisonment was illegal and in contravention
of the Constitution of the United States, Article V of the
amendments to the same; that, on October 16, 1901, he was sentenced
to imprisonment in the state prison on by the District Court of the
United States in and for the Northern District of California for
the period of two years, to date from the sixteenth day of October,
1901; that he had been imprisoned, under the judgment, in the state
prison ever since April 13, 1903, and that, prior thereto, and from
the date of the judgment to April 13, 1903, he was imprisoned,
under said judgment, in the county jail of the County of Alameda by
the order of the district court.
The appellant also alleged that, notwithstanding the foregoing
facts, the warden refused to discharge or release him from
imprisonment, although the term of said imprisonment expired,
according to its terms, on October 16, 1903. The appellant then set
forth in the petition a copy of the record of the proceedings of
the district court of the United States which showed that he was
convicted in the district court on the sixteenth of October, 1901,
of making and presenting a false claim, as charged in the first
count of the indictment, and of using a portion of the public
moneys of the United States for
Page 194 U. S. 542
a purpose not prescribed by law, as charged in the fourth count,
and that he was sentenced
"to be imprisoned at hard labor for the term of two years from
October 16, 1901, and it is further ordered that said sentence of
imprisonment be executed upon the said Walter N. Dimmick by
imprisonment in the state prison of the State of California at San
Quentin, Marin County, California."
The record was signed by the district judge who held the
court.
The petition also set forth a copy of the indictment under which
the trial was had. It was founded upon sections 5438 and 5497 of
the United States Revised Statutes, and charged, in substance, the
presentation to the cashier of the mint at San Francisco of a
certain false, fictitious, and fraudulent claim against the United
States, and known to be fraudulent by the defendant at the time he
presented it; also, with having unlawfully used a portion of the
public moneys for a purpose not prescribed by law. The appellant
averred that neither the first nor the fourth count charged any
crime or public offense against the United States nor the violation
of any law of the United States, and that both counts were fatally
defective. The appellant also averred that the judgment of the
court, in as far as it required his imprisonment in the state
prison, was void because the United States district court sentenced
him for one year, and no more, upon each of the two counts of the
indictment referred to in the judgment, and did not sentence him to
imprisonment for a period of more than one year upon each of said
counts, and that a sentence to the state prison for a period of not
more than one year violated the statutes of the United States.
Page 194 U. S. 546
MR. JUSTICE PECKHAM, after making the above statement of facts,
delivered the opinion of the Court.
The appeal directly to this Court from the decision of the
circuit court denying the writ of habeas corpus was proper under
the averments contained in the petition, that the imprisonment of
the appellant was in violation of the federal Constitution.
Craemer v. Washington, 168 U. S. 124,
168 U. S.
127.
The appellant contends that, as his sentence was imprisonment
"at hard labor for the term of two years from October 16, 1901,"
his term of imprisonment under that sentence necessarily expired by
its own limitation on October 16, 1903, even without any deduction
for credits earned by good behavior.
If the appellant had been at once transported to the state
prison under the sentence imposed upon him after his conviction, it
is, of course, plain that two years from the time of his sentence
(if he remained there in the meantime) would be the extent of his
legal detention. In fact, he was not taken
Page 194 U. S. 547
to the state prison until April 13, 1903, but he avers that he
had been previously, and from October 16, 1901, the date of the
judgment, to April 13, 1903, imprisoned under said judgment in the
county jail of the County of Alameda, by the order of said district
court. The sentence upon the verdict of guilty is given in the
record, which is made a part of the petition, and that record shows
that the appellant was
"sentenced to be imprisoned at hard labor for the term of two
years from October 16, 1901, and it is further ordered that said
sentence of imprisonment be executed upon the said Walter N.
Dimmick by imprisonment in the state prison of the State of
California at San Quentin, Marin County, California."
The imprisonment of the appellant in the county jail could not,
therefore, have been under the judgment which prescribes
imprisonment in the state prison. But such detention may have been
owing to his efforts to obtain a review and reversal of the
judgment, and, in the meantime, a supersedeas thereon, so as to
prevent his transportation to the state prison, and in that case
such detention should not be counted as any part of the time of
imprisonment in the state prison. In that event, his imprisonment
in the state prison under the judgment should be counted from the
time it actually commenced, notwithstanding the statement of the
sentence that it should be for two years from October 16, 1901. The
time of commencement was postponed by his own action, and he cannot
take advantage of it, and thus shorten the term of his imprisonment
at hard labor in the state prison.
Upon this writ, the question to be examined is one of
jurisdiction, and in this case it is whether the warden of the
prison has the legal right to continue the imprisonment under the
sentence and warrant of commitment notwithstanding the expiration
of two years from the time of sentence. If, as we have said, the
detention in the jail was the result of his own action, and his
imprisonment at hard labor in the state prison did not, for that
reason, commence until April 13, 1903, then the legal term of his
imprisonment in the state prison has not
Page 194 U. S. 548
expired, and he is properly detained. As it was incumbent upon
the appellant to show his continued imprisonment was illegal (there
being no presumption that it was), the duty and the burden rested
upon him to aver, and, if the averment were traversed, to prove,
that his detention in jail had not been by reason of the fact
suggested. This he has not done. There is no such averment in the
petition for the writ, and there is no proof of such fact to be
found.
Non constat that he was not detained for the very
reason already stated. This is fatal to the appellant so far as
this point is concerned.
As might be surmised, there was ample reason for not making the
allegation. It would not have been true.
It appears from our own records that a petition for a certiorari
was filed in this Court by appellant February 2, 1903, asking for a
review of the above-mentioned judgment, and in that petition it is
stated that the appellant had taken proceedings to have the
judgment reviewed by the circuit court of appeals, and had obtained
a supersedeas thereon, and after the judgment had been affirmed by
that court, and on January 13, 1903, the district court ordered the
execution of the judgment thus affirmed to be stayed for the period
of thirty days from that date to enable the appellant to make
application to this Court for a writ of certiorari, which
application was made, and denied by this Court March 2, 1903. 189
U.S. 509. In a case like this, the Court has the right to examine
its own records and take judicial notice thereof in regard to
proceedings formerly had therein by one of the parties to the
proceedings now before it. The principle permitting it is announced
in the following cases:
Butler v. Eaton, 141 U.
S. 240,
141 U. S. 242;
Craemer v. Washington, 168 U. S. 124,
168 U. S. 129;
Bienville Water Supply Co. v. Mobile, 186 U.
S. 212,
186 U. S.
217.
That the party seeking to review a judgment of imprisonment in a
state prison cannot take advantage of his own action in so doing as
to thereby shorten the term of imprisonment in the state prison is,
as we think, plain. To hold otherwise would be inconsistent with
the general principle that a person
Page 194 U. S. 549
shall not be permitted to take advantage of any act of another
which was committed upon his own request, or was caused by his own
conduct.
See McElvaine v. Brush, 142 U.
S. 155,
142 U. S. 159.
The question has arisen in some of the state courts, and has been
so decided.
See Ex Parte Duckett, 15 S.C. 210, decided in
1881;
Ex Parte Espalla, 109 Ala. 92, decided in 1896. In
such cases, the provision of the sentence that the imprisonment is
to commence on or to continue from a certain day is rendered
impossible of performance by the act of the defendant, and he will
not be permitted to obtain an advantage in such manner. The
appellant cites no case which questions this principle. Those cited
by him have, generally, reference to the construction to be given
the language of the sentence as to the time of its commencement.
They do not deny the rule as to the action of defendant in
preventing its execution.
Johnson v. People, 83 Ill. 431, is not in point. The
case arose on error brought by the defendant after conviction in
the court below. He was convicted under several counts of an
indictment for selling intoxicating liquors, and the sentence fixed
a day and hour when the imprisonment should commence under each
count. This was held to be error, as the sentence to imprisonment
should have been for a specified number of days under each count
upon which conviction is had, and the imprisonment under each
succeeding count would begin when it ended under the preceding one,
without fixing the day or hour of any. It appeared in that case
that a supersedeas had been granted, and that it had become
impossible that the judgment of imprisonment could be carried into
effect, as the time fixed by the court had elapsed . The sentence
was held to be an erroneous one, and the judgment was reversed and
the case remanded, with directions that the court should enter a
proper judgment on the verdict.
In
Dolan's Case, 101 Mass. 219, the prisoner, after
imprisonment, had escaped before the term of the sentence
Page 194 U. S. 550
had expired, and, having been retaken, claimed his discharge at
the expiration of the time that he would have been entitled to it
if he had not escaped. Neither the date of its commencement nor of
its expiration was fixed by the terms of the sentence. His
application was denied, and it was held that the defendant must be
imprisoned for a time which corresponded with his original
sentence, and that the expiration of the time without imprisonment
was in no sense an execution of the sentence.
Also in
State v. Cockerham, 24 N.C. 204, it was held
that the time at which the sentence should be carried into
execution forms no part of the judgment. The judgment is the
penalty of the law, as declared by the court, while the direction
with respect to the time of carrying it into effect is in the
nature of an award of execution. So here, in the case before us,
the material part of the sentence is imprisonment for two years in
the state prison, and that sentence is not satisfied by a detention
in the county jail for a portion of the two years by reason of the
proceedings of appellant to review the judgment under which the
sentence was given.
As to the time of the commencement of the sentence,
State v.
Gaskins, 65 N.C. 320, is based upon a statute which declared
that the term of imprisonment "shall begin to run upon, and shall
include, the day of conviction." The question did not arise by
reason of the act of the defendant in taking proceedings to review
the judgment.
Woodward v. Murdock, 124 Ind. 439, simply holds that
the period the prisoner is out of jail under parole is part of the
time for which he was sentenced, and when the original time expires
he is entitled to his discharge just the same as if he had been in
prison the whole time. It was held that he was constructively in
prison, although in fact conditionally at large under his parole,
and that while thus on parole, his sentence ran on.
The sentence given in this case could only have been satisfied
by imprisonment in the state prison at San Quentin for the
Page 194 U. S. 551
period of time mentioned in the sentence. This is not the case
of an arbitrary detention in jail, without excuse or justification,
after sentence to imprisonment in a state prison. If in such case
the defendant were helpless, the question might arise whether the
time of such improper detention in jail should not be counted, as
to that extent, a satisfaction of the sentence.
It is also objected that the sentence is void because it directs
imprisonment in the state prison for a period that does not exceed
one year on each count of the indictment, and
In re Mills,
135 U. S. 263,
135 U. S. 268,
is cited to sustain the proposition.
In that case, the prisoner was sentenced upon two indictments to
imprisonment in the penitentiary -- in one case for a year and in
the other for six months -- and it was held that the imprisonment
was in violation of the statutes of the United States.
See
Rev.Stat. §§ 5541, 5546, 5547.
In the case at bar, the sentence was for two years upon one
indictment, and there is no statement in the record that there was
a separate sentence each for one year upon the first and fourth
counts of the indictment. In this we think there was no violation
of the statute, and the sentence was therefore proper and legal.
The appellant may have been sentenced upon one count only for two
years. Although for some purposes the different counts in an
indictment may be regarded as so far separate as to be in effect
two different indictments, yet it is not true necessarily and in
all cases. But this record shows a sentence for two years to the
state prison, and there is nothing to show the court was without
jurisdiction to impose such sentence for the crime of which the
defendant was convicted.
It is also objected that the facts charged in either the first
or fourth count of the indictment did not constitute any offense
under the statute, and that the sentence was therefore without
jurisdiction. We are not by any means prepared to adjudge that the
indictment did not properly charge an offense in both the first and
fourth counts.
See Dimmick v. United States, 116 F. 825,
involving this indictment, where
Page 194 U. S. 552
it is set forth. It is not, however, necessary in this case to
decide the point, for the indictment charged enough to show the
general character of the crime, and that it was within the
jurisdiction of the court to try and to punish for the offense
sought to be set forth in the indictment. If it erroneously held
that the indictment was sufficient to charge the offense, the
decision was within the jurisdiction of the court to make, and
could not be reexamined on habeas corpus. The writ cannot be made
to do the office of a writ of error. Even though there were,
therefore, a lack of technical precision in the indictment in
failing to charge with sufficient certainty and fulness some
particular fact, the holding by the trial court that the indictment
was sufficient would be simply an error of law, and not one which
could be reexamined on habeas corpus.
Ex Parte Parks,
93 U. S. 18;
In
re Coy, 127 U. S. 731;
In re Eckart, 166 U. S. 481. In
the last case, it was stated that (page
166 U. S.
483):
"The case is analogous in principle to that of a trial and
conviction upon an indictment, the facts averred in which are
asserted to be insufficient to constitute an offense against the
statute claimed to have been violated. In this class of cases it
has been held that a trial court possessing general jurisdiction of
the class of offenses within which is embraced the crime sought to
be set forth in the indictment is possessed of authority to
determine the sufficiency of an indictment, and that, in adjudging
it to be valid and sufficient, acts within its jurisdiction, and a
conviction and judgment thereunder cannot be questioned on habeas
corpus, because of a lack of certainty or other defect in the
statement in the indictment of the facts averred to constitute a
crime."
The order refusing the writ was right, and is
Affirmed.
