1. A federal court imposing a fine in a criminal case may, in
its discretion, direct that the defendant be imprisoned until the
fine is paid; such direction, being an exercise of the judicial
function, must be expressed in the sentence. P.
298 U. S.
463.
2. The only sentence known to the law is the sentence entered
upon the records of the court -- the judgment. P.
298 U. S.
464.
3. If a sentence has been entered inaccurately, it may be
corrected in a direct proceeding, but, when assailed collaterally,
it imports verity, and the presumption that it says what the judge
meant is irrebuttable. P.
298 U. S.
464.
4. A commitment departing in matter of substance from the
judgment back of it is void, and its nullity may be established
upon habeas corpus. P.
298 U. S.
465.
5. To a sentence of fine and imprisonment was added by the
commitment prepared by the Clerk a direction that the imprisonment
continue until the fine was paid.
Held:
(1) That such addition to the sentence could not be justified by
a usage in the District or by unrecorded instructions from the
judge to the clerk. P.
298 U. S.
465.
Page 298 U. S. 461
(2) An order of the court refusing to strike the added direction
from the commitment was not binding, as
res judicata, in a
proceeding by habeas corpus to test the legality of the continued
confinement after the term specified in the sentence had expired.
P.
298 U.S. 466.
Response to questions certified in relation to an appeal to the
court below from a judgment of the District Court, 11 F. Supp. 540,
discharging the relator on habeas corpus.
MR. JUSTICE CARDOZO delivered the opinion of the Court.
By an indictment in two counts, the relator Wampler was charged
with an attempt to evade and defeat the payment of his income tax
under the laws of the United States through the filing in the years
1930 and 1931 of false and fraudulent returns. He was convicted in
the United States District Court for the District of Maryland. On
December 28, 1933, the judgment of the court was pronounced as
follows:
"Fine five thousand dollars and eighteen months in penitentiary
on each count of the indictment, said terms of imprisonment to be
computed as beginning this 28th day of December 1933; fines to be
cumulative and terms of imprisonment to run concurrently, and that
traverser pay costs of proceedings."
On the same day, the clerk of the court issued and forwarded to
the United States Northeastern Penitentiary at Lewisburg, Pa. a
commitment in which the judgment was set out as follows:
"That the traverser pay a fine of Five Thousand Dollars and be
imprisoned in the United States Northeastern Penitentiary at
Lewisburg,
Page 298 U. S. 462
Pennsylvania, for eighteen months on each count of the
indictment; said term of imprisonment to be computed as beginning
this 28th day of December, 1933, the fines to be cumulative and the
terms of imprisonment to run concurrently, and that the traverser
pay the costs of prosecution, and, in default of payment of said
fines and costs, he stand further committed until the payment of
said fines and costs or until discharged by due process of
law."
On April 21, 1935, when the term of eighteen months was
approaching an end, Wampler filed in the United States District
Court for the District of Maryland a petition directed to the judge
of that court in which he alleged that the court had not adjudged
or ordered that he was to stand committed until the payment of the
fine and costs, that this provision had been inserted in the
commitment by the clerk, and that it was no part of the sentence.
He prayed for an order amending the commitment by striking
therefrom the words so added.
On April 25, 1935, the petition for amendment was denied, the
judge filing an opinion in which he pointed out that Maryland is a
common law state, that the practice in the state courts is not to
include in the judgment of the court the express direction that the
defendant stand committed until the fines are paid, that it has
always been the practice in the District Court for the District of
Maryland to follow the procedure in the state court, but that the
clerk of the court has instructions from the court to include in
the commitment the express provision that the defendant stand
committed until the fines are paid, unless otherwise directed.
[
Footnote 1] There was no
appeal from that decision.
On July 23, 1935, the relator filed in the United States
District Court for the Middle District of Pennsylvania a petition
for a writ of habeas corpus alleging that the
Page 298 U. S. 463
proper term of his imprisonment had expired and that his
detention had become unlawful. The petition was granted, and the
relator discharged.
Wampler v. Hill, 11 F. Supp. 540. The
warden of the penitentiary appealed to the Circuit Court of Appeals
for the Third Circuit. That court, after certifying the facts
substantially as summarized above, requested our instructions upon
the following questions (Judicial Code, § 239, as amended, 28
U.S.C. § 346):
"1. Was the provision in the commitment for imprisonment for
nonpayment of fine and costs which was inserted by the Clerk but
not included in the sentence orally pronounced by the judge, (a)
void? or (b) merely irregular?"
"2. Was the determination of the District Court on the petition
to correct the commitment a final judgment conclusive on the issue
as to the validity of such commitment until reversed by appropriate
proceedings for review?"
"3. Will habeas corpus lie in one court to correct the
commitment of another court which certainly, definitely, and
specifically directs the imprisonment of relator for nonpayment of
fine and costs on the ground that such provision was inserted by
the Clerk, but was not the sentence orally pronounced by the
court?"
The payment of a fine imposed by a court of the United States in
a criminal prosecution may be enforced by execution against
property in like manner as in civil cases. R.S. § 1041, 18 U.S.C. §
569. In the discretion of the court, the judgment may direct also
that the defendant shall be imprisoned until the fine is paid.
Ibid., and see R.S. § 1042, 18 U.S.C. § 641.
Ex parte
Jackson, 96 U. S. 727,
96 U. S. 737;
Ex parte Barclay, 153 F. 669;
Haddox v.
Richardson, 168 F. 635, 639. If the direction for imprisonment
is omitted, the remedy by execution is exclusive. Imprisonment does
not follow automatically upon a showing of default in payment. It
follows, if at all,
Page 298 U. S. 464
because the consequence has been prescribed in the imposition of
the sentence. The choice of pains and penalties, when choice is
committed to the discretion of the court, is part of the judicial
function. This being so, it must have expression in the sentence,
and the sentence is the judgment.
Miller v. Aderhold,
288 U. S. 206,
288 U. S. 210;
Wagner v. United States, 3 F.2d 864;
State v.
Vaughan, 71 Conn. 457, 458, 42 A. 640;
Manke v.
People, 74 N.Y. 415, 424.
Two of the questions certified to us, the first question and the
third, make mention of a variance between the commitment and the
sentence "orally pronounced." If that were the only variance, we
should deem it unimportant. The only sentence known to the law is
the sentence or judgment entered upon the records of the court.
Miller v. Aderhold, supra; Wagner v. United States, supra;
Manke v. People, supra. If the entry is inaccurate, there is a
remedy by motion to correct it to the end that it may speak the
truth.
People ex rel. Trainor v. Baker, 89 N.Y. 460, 466.
But the judgment imports verity when collaterally assailed.
Ibid. Until corrected in a direct proceeding, it says what
it was meant to say, and this by an irrebuttable presumption. In
any collateral inquiry, a court will close its ears to a suggestion
that the sentence entered in the minutes is something other than
the authentic expression of the sentence of the judge.
The questions are to be read, however, in the light of the
preliminary statement certifying the facts out of which the
questions have arisen. Rule 37;
Stratton's Independence v.
Howbert, 231 U. S. 399,
231 U. S. 422;
Dillon v. Strathearn S.S. Co., 248 U.
S. 182,
248 U. S. 184.
From that certificate it is clear that the sentence spread upon the
records is identical with the sentence orally pronounced, and that
the only variance complained of is between sentence and commitment.
[
Footnote 2] In such
circumstances, the
Page 298 U. S. 465
word "orally" in questions 1 and 3 may be disregarded as
superfluous, and the answers to the questions made as we would make
them if the word had been omitted.
A warrant of commitment departing in matter of substance from
the judgment back of it is void.
Boyd v. Archer, 42 F.2d
43;
Wagner v. United States, supra. Being void, and not
merely irregular, its nullity may be established upon a writ of
habeas corpus.
People ex rel. Trainor v. Baker, supra; Boyd v.
Archer, supra; McNally v. Hill, 293 U.
S. 131. "The prisoner is detained not by virtue of the
warrant of commitment, but on account of the judgment and
sentence."
Biddle v. Shirley, 16 F.2d 566, 567;
Howard
v. United States, 75 F. 986, 989;
Ex parte Wilson,
114 U. S. 417,
114 U. S. 422;
People ex rel. Trainor v. Baker, supra. If the judgment
and sentence do not authorize his detention, no "
mittimus"
will avail to make detention lawful.
The argument is made that there is a practice in the Maryland
District to make the commitment broader than the judgment, and that
the practice should be given the quality of law. There is no such
overriding virtue in usage or tradition. The court speaks through
its judgment, and not through any other medium. It is not within
the power of a judge, by instructions to a clerk, to make some
other medium the authentic organ of his will. We are told that the
instructions may be likened to a rule of court. They were not
published; they were not reduced to writing; they are lacking in
the formal safeguards that protect against mistake, and perhaps
against oppression.
Cf. Rio Grande Irrigation Co. v.
Gildersleeve, 174 U. S. 603,
174 U. S. 608;
Weil v.
Neary, 278 U.S.
Page 298 U. S. 466
160,
278 U. S. 169.
There are times when settled usage is as efficacious as a written
rule to fix the forms of practice.
United States v.
Stevenson, Fed.Cas. No. 16,395;
Norton v. Rich,
Fed.Cas. No. 10,352;
Detroit Heating & Lighting Co. v.
Kemp, 182 F. 847. A court will be cautious in applying such a
doctrine where liberty is at stake. But here, the traditional
instructions have a defect more deepseated than the absence of a
writing. Taken at their face value, they fall short of the effect
imputed to them. They do not profess to regulate the form or
content of the sentence, which is to be recorded by the clerk
without addition or amendment. They are aimed at the commitment at
that and nothing else, imparting to it a capacity, a superseding
virtue, unknown to the law. Something more is needed than a few
words of unrecorded talk between a judge and a prothonotary to
compass that result.
The refusal to modify the warrant of commitment is not a bar to
the relief now prayed by the relator. Finality within the doctrine
or
res judicata does not attach to every ruling upon law
made by a judge upon the decision of a motion.
Denny v.
Bennett, 128 U. S. 489,
128 U. S. 499;
Riggs v. Pursell, 74 N.Y. 370, 378;
cf. American
Surety Co. v. Baldwin, 287 U. S. 156,
287 U. S. 166.
This is true though the ruling may have been pertinent or even
necessary to the conclusion reached. In such circumstances,
finality will rarely be extended beyond the terms of the order, and
applied to the supporting reasons. There is nothing in this case to
call for a departure from the general rule.
A warrant of commitment spends its force, it fulfills what is at
least its primary purpose, upon delivery of the prisoner at the
place of his imprisonment. When "the prisoner is safely in the
proper custody, there is no office for a
mittimus to
perform."
People ex rel. Trainor v. Baker, supra; Howard v.
United States, supra. Even
Page 298 U. S. 467
after such delivery, the warrant is convenient evidence for the
protection of the jailer, but it may be lost or destroyed, and
detention may be justified by the underlying judgment.
Ibid.,
and see Ex parte Wilson, supra. The effect of an order
refusing an amendment is to be adjudged with due regard to the
character and office of the thing to be amended. At the time of
that order, the relator was lawfully imprisoned, the term of
eighteen months being still unexpired. At the time of this
petition, the term was at an end, and imprisonment from then on had
been turned into a wrong. The commitment was neither better nor
worse because of the ruling of the judge that he would let it stand
as written. If void, it was still void; if valid, it had received
no accession of validity. What was said by the judge in the course
of his opinion may be significant as a precedent; it is ineffective
as a bar. The writ of habeas corpus searches the record back of the
commitment. It lays a duty on the court to explore the foundations,
and pronounce them false or true.
We answer the questions submitted to us as follows, interpreting
them, however, as explained in the opinion:
To the first question, we say that the provision is void.
To the second question, we answer "no," and to the third
question, "yes."
Ordered accordingly.
[
Footnote 1]
See United States v. Wampler, 10 F. Supp. 609, 611.
[
Footnote 2]
In
United States v. Wampler, 10 F. Supp. 609, 611, the
court said:
"The judgment as entered on the docket by the clerk recites the
terms of imprisonment and the amount of the fine or fines as
announced in the sentence, but does not recite the commitment in
default of payment of the fine. This has been the long established
practice, and was followed in this particular case."