IN, BE ESMOND.
827
In re
EsMOND.
(.z:>i8trict Oourt, D. South Dq1wta. June, 1890.)
. 1.
CBIMnUL LAw-TBRIUTORUL CoURTS-COMULATtV'B BUTBNCBL
Rev. st. Idal;10t § 7281, providing that cumulative sentencell may be Imposed 011. person convicwa of two or more applies to o1fensesllgainst the: UDite4 States tried in the territorial courts. '
t. SiKH.' Cumulative sentences are valid, If they arede1lnite and certalD.
Petitiop for Writ of (Jo,ptl8. Winsor & Kittredge, for petitioner. Wm. B. Sterling, for the States. FOSTEB,J". This is an application made by Henry Esmond. 8 pris, oner trieliand sentenced in the district court of the territory of Idahoexercising United States jurisdiction for certain purposes, on four cons victions for offenses connected with,the robbery of the United Statemail. 'The prisoner was sentenced to four oonsecutive terms of imprisonment,of three Ylilltrs each; the judgmeQ,t of the court providing in each of the sentences after the first that, the additional term of three years was "to (lommence at the expiration of the term of three years to be served by said defendantthis day adjudged against him in the case of the United States, criminal number three, against Henry Esmond, or whenever his term of imprisonment after the judgment in said case shall cease and be ended for any reason, except by the death of the said no United States prison in the territory of defendant." There Idaho, the said Esmond was confined by order of the attorney general in the United States penitentiar;r at Sioux Falls, in the territory of Dakota. The sentence was rendered on the 30th day of September, 1886, and the first term expired, after giving credits for good behavior, on the 30th day of May, 1889. The question presented for our decision is whether the said consecutive sentences are legal and valid. It is claimed by the petitioner that the said sentence beyond the first im· prisonment is illegal and void because it is indefinite and uncertain, and the court had no power to impose a cumulative sentence. The stat' ute of Idaho contained the following provision:
"When any person is convicted of two or more crimes, before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction must commence 'at the termination of the first term of imprisonment to which he shall be adjUdged, or at the termination of the second or other subsequent term of imprisonment, as the case may be." Rev. St. Idaho, § 7237. It is contended for the petitioner that this provision does not apply to offenses against the laws of the United States tried in the territorial
,as
courts. Touching this question, there are two cases decided by the supreme court to which we will refer. Reynolds v. U. S., 98 U. S. 145, a prqsecution in the territorial courf:8 of Utah for bigamy under the
FEDERAL Rtp(UtTER',
vol. 42.
act of congress. The laws of Utah. mad El a grand jury to consist of 15 persons, and the indictmenfwasfound by such a grand jury; whereas, the laws of the United States makes theminimum number of grand jurors 16. THe supreme cotirt held that the territorial court was not a United States cc.lUrt,an,4 the statute of the territory governed its ,,'J;he courtsays: "Tliey ltte"couttsof the territories inyested.for some purposes with the powers of the courts of the United States. * * * This leaves the territorial courts free; ,to act in obedience to the requirements of the, territorial laws in force for the time being." The territorial legislature of Montana had abolished all distinctions between proceedings at law and in 'equity, in .its courts. The only error assigned in the following casevtasthe intermingling of legal and equitable remedies in one form of action. The court say: "Such'all objection' would be available in the circuit and district courts of tile U)lited, States. *, *. * Whether the territorial courts wre subject to the sameregull,ltions is the ,qtlestion which is now fairly presented." After, discussing the question at some length. the conclusion is expressed in these words: "From a review of the entire past legislation of congress 'tJn the slibject under eonsideraldonjour conclusion is that the practice, pleadings, and forms .and modes of .prooeedings of the territorial courts, as well as their respective jurisdiction; subject, as before said, to a few express or implied conditions in the organic act itself, were intendedtobe,Jeft to the legisllf,tive action of the territorialassetnbly, and to the regulations which might b,e adopted by the coo l'ts thelIlselves." Qornbuckle v. Toombs, 18 Wall. 648. Now;. is nothing in .the orga:t;lic act of the territory of Idaho ,or. expressly prohibiting that territory from passing an act concuw.:ul,ative sentences, (and n()t claimed there is,) it may well such. legislation is opligatory upon the :territorial courts 'whensi,tting, tp.hearcases arising under the laws of the, United States. ., whetller cumulat.ive senterices,ilithe absenceiqfanystatute, alje valid, Ifi,ndquitea. conflict of authorities. Micp. 597,.19 N.,W. Rep. 200iJudge COOLEY displ'isoner were cumulative sentences. The petitioner .had ','been convioted on two charges of larceny, and sentenced to hnprisonmEmt for three lI).onths on each,ihe first oommencing January thellecol1d to commence "from and after April 24, 1888, unless," 'etc. 'l'h'en. follow several contingencies. In this case the judge said: , "The '1uestlon presented is not without difficulty·. * *. * But, express,. ing no opinldll.\lpon the general question, we thihk a sentence to confinement, to take etreGt' in the future, cannot be sustained unless it is certain and definite, and not subject to undefined' and uncertain contingencies. The commitment.intpi.!l case is not of that character." . 'The same rule was followed and exerriplified in Lamphere's Case; (Mich.) 27 N.W. Rep. 882. In this case tho court follow the Bloom Case, but concede that under the common law, incases of misdemeanor, tive'sentenc,e$'\vereallowed, but deny that the rule applied in casesoi
UNITED STATES
fl.
GARDNEIt.
829
Je10ny·.. in Allen's Chse, 11 Ind. 389, the prisoner was discharged .whereneld under cumulative sentences. The court say: "There being no statute in force providing that one term of imprisonment shall COlJlmence at the expiration of another. we are of the opinion that both terms commence and run concurrently. We have been furnished with no authorities upon the question involved."
In support of the legality tTcumulative sentences are the following authorities: Kite v.Com., 11 Mete. 581. We quote from the opinion: "Th.e .collrt all of opinion that it is no error in a jUdgment in aerim-
inal case to make one term of imprisonment commence when another terminates. It is as certain as the nature of the case will admit, and there is no other mode in which a party may be sentenced on several convictions." In U. S. v. Patt£rsDn, 29 Fed. Rep. 775, the petitioner, Baldwin, was
convicted on three indictments, and sentenced to five years upon each indictment. The judgment did not state on which indictment the imand proviaed further: "Said terms not to run concurrently." Held, that the sentence was too uncertain, and was therefore illegal and void. In this case Justice BRADLEY says: "Perhaps these terms might have been lawfully made to take effect successively if the order of their succession had·· been specified, although there is no United States statute authorizing it to be done; but this was not done. .... · .... As neither of them was made to take effect after the one or the others, theY all took effect alike."
People v. Forbes, 22 Cal. 136, holds that consecutive sentences are valid; also do Statev. Smith,5 Day, 175; Brown v. Com.,4 Rawle, 259; Inre Jack8on, 3 MacArthur, 24; JohnBon v. People, 83 Ill. 434; Ex parte Kirby, (Cal.) 18 Pac. Rep. 655. Bishop, in his work on Criminal Law, states the as well settled that cumulative sentences are legal. Section 953. .It would seem that the great weight of authority is in favor of the legality of consecutive sentences. Indeed, there seems to be qtlite a uniformity of decisions in· favor of such judgments, with the exception,of the two Michigan and Indiana cases before referred to. We·are therefore constrained to hold that the sentence in this case is legal, and thepriSonElrmust be remanded to the warden of the penitentiary.
'V.
GARDNER.
(C{rcwU Court, N. D. New York. May 22.1800.)
L
An illdictment averred thltt defendant, and S. and R., "together with divers other evil.:(lisposed persons, »did to steal certain chattels, .. the J?roperty of and in thepOBsession of the United States,» and that thereafter "the saId S·· together with the said divers other evil-disposed persons." in execution and further ance of the said conspiracy. did unlawfully and feloniously steal, etc. Beta, that the indictmentchal'ged defendant with the conspiracy only,and not with the larceny, and an oPW-QtiQn to a conviction for the conspiracy, on the ground that, ltS it w,as,a misdeuieljolior 9nly, it was merged in the larceny, which was a felony, could not. be BU$tained. . '.,' ' " ,. ,
Qll' OIl'Il'.ENBE -CONBPIRACY TO COMMIT
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