1. Our system of state and federal jurisdiction requires a
spirit of reciprocal comity between courts to promote due and
orderly procedure. P. 258 U. S.
2. The fact that a man is serving a sentence of imprisonment
imposed by a federal court for a federal offense does not render
him immune to prosecution in a state court for offenses committed
against the state. P. 258 U. S.
3. A federal prisoner may, with the consent of the United
States, be brought before a state court, for trial on indictment
there, by a writ of habeas corpus issued by that court and directed
to the warden having him in charge as federal agent, then to be
returned and serve out the federal sentence. P. 258 U. S.
Page 258 U. S. 255
4. The Attorney General, in view of his statutory functions, has
implied power to exercise the comity of the United States in such
cases, provided enforcement of the sentence of the federal court be
not prevented, or the prisoner endangered. P. 258 U. S.
5. Upon trial and conviction of one already sentenced for
another crime, execution of the second sentence may begin when the
first terminates. P. 258 U. S.
This case comes here for answer to the following question of
"May a prisoner, with the consent of the Attorney General, while
serving a sentence imposed by a district court of the United
States, be lawfully taken on a writ of habeas corpus, directed to
the master of the House of Correction, who, as federal agent under
a mittimus issued out of said district court, has custody of such
prisoner, into a state court, in the custody of said master and
there put to trial upon indictments there pending against him?"
September 11, 1920, twenty-two indictments were returned against
Charles Ponzi in the Superior Court for Suffolk County,
Massachusetts, charging him with certain larcenies.
October 1, 1920, two indictments charging violation of § 215 of
the Federal Penal Code were returned against him in the United
States District Court for the District of Massachusetts. November
30, 1920, he pleaded guilty to the first count of one of these, and
was sentenced to imprisonment for five years in the House of
Correction at Plymouth, Massachusetts, and committed.
April 21, 1921, the superior court issued a writ of habeas
corpus directing the master of the House of Correction, who, as
federal agent, had custody of Ponzi by virtue of the mittimus
issued by the district court, to bring him before the superior
court and to have him there from day to day thereafter for trial
upon the pending indictments, but to hold the prisoner at all times
in his custody as an agent of the United States, subject to the
sentence imposed by the federal district court. Blake,
Page 258 U. S. 256
the master of the House of Correction, made a return that he
held Ponzi pursuant to process of the United States, and prayed
that the writ be dismissed.
Thereafter the Assistant Attorney General of the United States,
by direction of the United States Attorney General, stated in open
court that the United States had no objection to the issuance of
the writ, to the compliance with the writ by Blake, or to the
production of Ponzi for trial in the superior court, and that the
Attorney General had directed Blake to comply with the writ. Blake
then produced the prisoner, who was arraigned on the state
indictments and stood mute. A plea of not guilty was entered for
him by the court.
May 23, 1921, Ponzi filed in the district court a petition for a
writ of habeas corpus directed against the justice of the superior
court, and against Blake, alleging in substance that he was within
the exclusive control of the United States, and that the state
court had no jurisdiction to try him while thus in federal custody.
His petition for writ of habeas corpus was denied. An appeal was
taken to the circuit court of appeals, the judges of which certify
the question to this Court on the foregoing facts. Section 239,
Page 258 U. S. 259
MR. CHIEF JUSTICE TAFT, after stating the case as above,
delivered the opinion of the Court.
We live in the jurisdiction of two sovereignties, each having
its own system of courts to declare and enforce its laws in common
territory. It would be impossible for such courts to fulfill their
respective functions without embarrassing conflict unless rules
were adopted by them to avoid it. The people for whose benefit
these two systems are maintained are deeply interested that each
system shall be effective and unhindered in its vindication of its
laws. The situation requires, therefore, not only definite rules
fixing the powers of the courts in cases of jurisdiction over the
same persons and things in actual litigation, but also a spirit of
reciprocal comity and mutual assistance to promote due and orderly
Page 258 U. S. 260
One accused of crime has a right to a full and fair trial
according to the law of the government whose sovereignty he is
alleged to have offended, but he has no more than that. He should
not be permitted to use the machinery of one sovereignty to
obstruct his trial in the courts of the other, unless the necessary
operation of such machinery prevents his having a fair trial. He
may not complain if one sovereignty waives its strict right to
exclusive custody of him for vindication of its laws in order that
the other may also subject him to conviction of crime against it.
In re Andrews,
236 F. 300; United States v.
227 F. 314. Such a waiver is a matter that addresses
itself solely to the discretion of the sovereignty making it and of
its representatives with power to grant it.
One accused of crime, of course, cannot be in two places at the
same time. He is entitled to be present at every stage of the trial
of himself in each jurisdiction, with full opportunity for defense.
Frank v. Mangum, 237 U. S. 309
237 U. S. 341
Lewis v. United States, 146 U. S. 370
that is accorded him, he cannot complain. The fact that he may have
committed two crimes gives him no immunity from prosecution of
The chief rule which preserves our two systems of courts from
actual conflict of jurisdiction is that the court which first takes
the subject matter of the litigation into its control, whether this
be person or property, must be permitted to exhaust its remedy, to
attain which it assumed control, before the other court shall
attempt to take it for its purpose. The principle is stated by Mr.
Justice Matthews in Covell v. Heyman, 111 U.
, as follows:
"The forbearance which courts of coordinate jurisdiction,
administered under a single system, exercise towards each other,
whereby conflicts are avoided, by avoiding interference with the
process of each other, is a principle of comity, with perhaps no
higher sanction than the utility
Page 258 U. S. 261
which comes from concord; but between state courts and those of
the United States, it is something more. It is a principle of right
and of law, and therefore of necessity. It leaves nothing to
discretion or mere convenience. These courts do not belong to the
same system, so far as their jurisdiction is concurrent, and
although they coexist in the same space, they are independent, and
have no common superior. They exercise jurisdiction, it is true,
within the same territory, but not in the same plane, and when one
takes into its jurisdiction a specific thing, that res
as much withdrawn from the judicial power of the other as if it had
been carried physically into a different territorial
case concerned property, but the same
principle applies to jurisdiction over persons, as is shown by the
great judgment of Chief Justice Taney in Ableman v.
21 How. 506, quoted from and relied upon in
Covell v. Heyman.
In the case at bar, the federal district court first took
custody of Ponzi. He pleaded guilty, was sentenced to imprisonment,
and was detained under United States authority to suffer the
punishment imposed. Until the end of his term and his discharge, no
state court could assume control of his body without the consent of
the United States. Under statutes permitting it, he might have been
taken under the writ of habeas corpus to give evidence in a federal
court, or to be tried there if in the same district, § 753
Rev.Stats., or be removed by order of a federal court to be tried
in another district, § 1014 Rev.Stats., without violating the order
of commitment made by the sentencing court. Ex parte
4 Cranch 75, 8 U. S. 98
274 F. 160, 164. This is with the authority of
the same sovereign which committed him.
There is no express authority authorizing the transfer of a
federal prisoner to a state court for such purposes.
Page 258 U. S. 262
Yet we have no doubt that it exists, and is to be exercised with
the consent of the Attorney General. In that officer the power and
discretion to practice the comity in such matters between the
federal and state courts is vested. The Attorney General is the
head of the Department of Justice. Rev.Stats. § 346. He is the hand
of the President in taking care that the laws of the United States
in protection of the interests of the United States in legal
proceedings and in the prosecution of offenses be faithfully
executed. United States v. San Jacinto Tin Co.,
125 U. S. 273
In re Neagle, 135 U. S. 1
Kern River Co. v. United States, 257 U.
; Rev.Stats. § 359, Act of June 30, 1906, 34 Stat.
816; Rev.Stats. §§ 360, 361, 357, 364. By § 367 Rev.Stats., the
Attorney General is authorized to send the Solicitor General or any
officer of the Department of Justice
"to any state or district in the United States to attend to the
interests of the United States in any suit pending in any of the
courts of the United States, or in the courts of any state, or to
attend to any other interest of the United States."
The prisons of the United States and the custody of prisoners
under sentence are generally under the supervision and regulation
of the Attorney General. Act March 3, 1891, 26 Stat. 839. He is to
approve the expenses of the transportation of United States
prisoners by the marshals under his supervision to the wardens of
the prisons where they are to be confined, 26 Stat. 839. He makes
contracts with managers of state prisons for the custody of United
States prisoners. Rev.Stats. § 5548. He designates such prisons.
Rev.Stats., § 5546, amended 19 Stat. 88, and 31 Stat. 1450. Release
of United States prisoners on parole, whether confined in federal
prisons or in state prisons, is not made save with the approval of
the Attorney General. Act of June 25, 1910, 36 Stat. 819. The
Attorney General is authorized to change the place of imprisonment
Page 258 U. S. 263
States prisoners confined in a state prison when he thinks it
not sufficient to secure their custody, or on their application,
because of unhealthy surroundings or improper treatment. Section
5546 as amended 19 Stat. 88, and 31 Stat. 1450. One important duty
the Attorney General has to perform is the examination of all
applications for pardon or commutation, and a report and
recommendation to the President.
This recital of the duties of the Attorney General leaves no
doubt that one of the interests of the United States which he has
authority and discretion to attend to through one of his
subordinates in a state court under § 367 Rev.Stats. is that which
relates to the safety and custody of United States prisoners in
confinement under sentence of federal courts. In such matters, he
represents the United States, and may, on its part, practice the
comity which the harmonious and effective operation of both systems
of courts requires, provided it does not prevent enforcement of the
sentence of the federal courts or endanger the prisoner. Logan
v. United States, 144 U. S. 263
Counsel for appellant relies on § 5539, Rev.Stats., which
directs that, when any criminal sentenced by a federal court is
imprisoned in the jail or penitentiary of any state or
"such criminal shall in all respects be subject to the same
discipline and treatment as convicts sentenced by the courts of the
state or territory in which such jail or penitentiary is situated,
and, while so confined therein, shall be exclusively under the
control of the officers having charge of the same under the laws of
such state or territory."
This section, it is said, prevents the Attorney General or any
other federal officer from ordering the superintendent of a state
prison to produce a federal prisoner for trial or testimony. But it
is clear that the section has no such effect. The section is only
one of many showing the spirit of comity between
Page 258 U. S. 264
the state and national governments in reference to the
enforcement of the laws of each. To save expense and travel, the
federal government has found it convenient, with the consent of the
respective states, to use state prisons in which to confine many of
its prisoners, and the Attorney General is the agent of the
government to make the necessary contracts to carry this out. In
order to render the duty thus assumed by the state governments as
free from complication as possible, the actual authority over, and
the discipline of, the federal prisoners while in the state prison
are put in the state prison authorities. If the treatment or
discipline is not satisfactory, the Attorney General can transfer
them to another prison, but while they are there, they must be as
amenable to the rules of the prison as are the state prisoners. But
this does not have application to the procedure or the authority by
which their custody may be permanently ended or temporarily
The authorities, except when special statutes make an exception,
are all agreed that the fact that a defendant in an indictment is
in prison serving a sentence for another crime gives him no
immunity from the second prosecution. One of the best-considered
judgments on the subject is Rigor v. State,
101 Md. 465.
The Supreme Court of Maryland said (p. 471):
"The penitentiary is not a place of sanctuary, and an
incarcerated convict ought not to enjoy an immunity from trial
merely because he is undergoing punishment on some earlier judgment
Delay in the trial of accused persons greatly aids the guilty to
escape, because witnesses disappear, their memory becomes less
accurate, and time lessens the vigor of officials charged with the
duty of prosecution. If a plea of guilty and imprisonment for one
offence is to postpone trial on many others, it furnishes the
criminal an opportunity to avoid the full expiation of his crimes.
Page 258 U. S. 265
considerations have led most courts to take the same view as
that expressed in the case just cited. Other cases are State v.
38 Conn. 126; Thomas v. People,
67 N.Y. 218,
225; Peri v. People,
65 Ill. 17; Commonwealth v.
219 Pa. 204; Kennedy v. Howard,
74 Ind. 87;
Singleton v. State,
71 Miss. 782; Huffaker v.
124 Ky. 115; Clifford v. Dryden,
Wash. 545; People v. Flynn,
7 Utah 378; Ex parte
10 Nev. 261; State v. Keefe,
17 Wyo. 227, 252;
1 Crompt. & J. 459; Regina v. Day,
3 F. & F. 526.
It is objected that many of these cases relate to crimes
committed in prison during service of a sentence. The Maryland case
did not, nor did some of the others. But the difference suggested
is not one in principle. If incarceration is a reason for not
trying a prisoner, it applies whenever and wherever the crime is
committed. The unsoundness of the view is merely more apparent when
a prisoner murders his warden than when he is brought before the
court for a crime committed before his imprisonment. It is the
reductio ad absurdum
of the plea.
Nor, if that be here important, is there any difficulty in
respect to the execution of a second sentence. It can be made to
commence when the first terminates. Kite v. Commonwealth,
11 Metc. 581, 585, an opinion by Chief Justice Shaw. Ex parte
10 Nev. 261, 264; Thomas v. People,
But it is argued that, when the prisoner is produced in the
superior court, he is still in the custody and jurisdiction of the
United States, and that the state court cannot try one not within
its jurisdiction. This is a refinement which, if entertained, would
merely obstruct justice. The prisoner, when produced in the
superior court in compliance with its writ, is personally present.
He has full opportunity to make his defense exactly as if he were
brought before the court by its own officer. State v.
Page 258 U. S. 266
38 Conn. 126, 136. The trial court is given all
the jurisdiction needed to try and hear him by the consent of the
United States, which only insists on his being kept safely from
escape or from danger under the eye and control of its officer.
This arrangement of comity between the two governments works in no
way to the prejudice of the prisoner or of either sovereignty.
The question must be answered in the affirmative.