916
1JmWr.
BEPORTER,
vol. 43.
parle FRIDAY. Court, N. D. New Yor7c. Ootober 1'7,1890.) L 0aDmir.lt. LA.w.,..sBNTENOB-ENTRT .A.T BtrBSEQUBNT TBRH. terms of the supreme court of the District of Columbia are appointed by the 00,un in g,'enere.l 'term, f.ursuant to 25 U. S. Bt. at Large. 749, to on the first Tuesof January, Apri, and October. The rules of court proviae for the prolongation of a term only for tho purpose of signing and settling bills of exceptions. Held., that one term could not De continued after the commencement of the next succeeding term, and a judgment entered in JUly, under the heading "January Term, 1890, cont'dt " by which a sentence pronounced at the January term, 1890, ia set aside as invalia, and a new sentence pronounced, is void.
ne
.. BAHB-!:M:PRISONHBNT IN STATB PENITENTURY.
..
Rev. St. U. S. § 51541, provides that ",hen a person , convicted of an otrense against the United States lS sentenced to imprisonment "for a period longer than one year, " the sentence may be executed in a state penitentiary. Held, that a sen,t8lfce'in loch case of for, one year" in a state penitentiary is not vOld, but, if objectionable at all, is merely irregular, in that imprisonment in a state penitentiary for a period not "longer than one year" is imposed. '' 011' TBRH-HJ.RDLAlloR. ' , ,' " Rev. ,St,U. a. S pMI, provides that when "any person convIcted of any otrense United States is sentenced to imprisonment for a period longer thllon agaillSt one tear",the sentence may be e1l:6O\lted in a state penitentiary. Section 5542 provides that, "in every case where any criminQ,l convlcted of any offense against the United States is sentenced to imprisonment and confinement at hard labor," the lentence may be,ell:ecuted in a state Held, that seotion 5541 applies to oases where the punishment is imprisonment only, while section 5542 applies to oases l'irhere the punishment is imprisonment at hard labor, and where a person is convioted of aIlotrense against the United States, punisllable by, imprisonment at hard labor, the sentence may be exeop.ted in a state penitentiary though it is n()t "for a period longer than one year." Explaining In f'eMiUB, 10 Sup. Ct. Rep. 762, 183 U. S. 263. ,
"
8J.HB-PBIIlII1'BNTIAllY OIlTBNSB&.
Rev. St. D. C. 5 provides that a person oonvioted, among other offenses, of larceny, shall be imprisoned "in the penitentiary" for a,certain period. Section 1158 :provides thata persoD oonvicted of "shall be sentenced to suffer impr1sonment and labor" for a period not less than one year. Held that, where a person is convicted of grand larceny, sentence can be executed only in a penitentiary., ,
At Law. Application by Kate Friday for a discharge on a writ of 1tabeaB corpus. Sections 5541 and 5542 of the Revised Statutes of the United Stateaare .. follows: "Sec. 5541.. In every case where any person convicted of any otIense against the United States Is sentenced to imprisonment for a period longer than one year, the court by which the sentence is passed may order the same to be executed In any state jail or penitentiary Within the district or state where such court is held. the use of which jail or penitentiary is allowed by the legislaof the.8tate for that purpose. , "Sec. In ,every case where any criminal convicted ot any offense against the United States is sentenced to imprisonmentl and confinement to hard labor it shall be lawful for the court by which the sentence is passed to order the same to be executed in any state jail or penitentiary within the district or state where such court is held, the use of which jail or penitentiary fa· allowed by the legislature of the state for that purpose." , , aharlea A. TalcoU, for the petitioner. D. S. Alexander. U. S. Dist. Atty., and John E. Smith. Asst. U. S. Dist. Atty., opposed.
EX PARTE FRIDAY.
917
CoXE, J. The petitioner was, in 1889, indicted for larceny, at the October term of the supreme court of the District of Columbia, holding a criminal term. The indictment contained three counts. At the January term, 1890, the petitioner was tried and convicted upon all the couuts. A motion for a new trial was made and denied, and on the 15th of March, 1890, still of the January term, she was sentenced on the first count to be imprisoned at labor in the Albany county penitentiary for one year, on the the third count to be imprisoned at labor in the same penitentiary for one year additional, and on the second count to be imprisoned in the jail of the District of Columbia for 30 days. Notlce of appeal to the court in general term was thereupon given. The duly-certified records of the court, presented upon the argument, show that on the 9th of July, 1890, under the heading "January Term, 1890, cont'd," the defendant was brought into court, and the sentence previously pronounced on the 15th of March was set aside as invalid, and one that could not be carried into effect in view of the decision of the supreme court in Re Mills, 135 U. S. 263, 10 Sup. Ct. Rep. 762. A new sentence was thereupon pronounced, like the first in every particular, that the terms in the penitentiary were increased, being for a year and a day in each instance. The terms of the criminal court for the District.of Columbia for the year 1890 began on the first Tuesdays of January, April, and October. The superintendent of the Albany penitentiaryattaches to his return what purports to be a certified copy of the record of the supreme court of the District of Columbia, and he states that this is his sole authority for holding the petitioner. This record is dated July 9th, and recites that tJ1e petitioner was indicted, tried, convicted, and 'sentenced to imprisonment for one year and one day upon the first and third counts, respectively. The petitioner asks to be released, for the following reasons: Firat. The septence being cumulative is erroneous. Seccmd. The sentence was partly executed by imprisonment from March 15th to July 9th in the district jail, and could not thereafter be changed, even at the same term. Third. The January term, 1890, expired upon the commencement of the April term, and a .sentence imposing additional penalties could not be pronounced after the term at which the petitioner was· convicted and first sentenced. The proposition that the court, on the 9th of July, had no jurisdic-tion to expunge the sentence of March 15th, and pronounced one imposing a longer imprisonment, states, in my judgment, the petitioner's .strongest ground of relief. In opposition to this position two conflicting theories are advanced. The district attorney maintained at the out,set that the first sentence was absolutely void, and the case should be treated as if it had been continued upon the verdict until July 9th, the sentence then pronounced being the only valid sentence. Subsequently the conflicting theory was advanced that the first sentence was in no way .affected by the Mill8 Case, that it was valid and is now being executed, and the proceedings of July 9th, being at a subsequent term, were be.yond the jurisdiction of the court, and should be treated as null. In :1lnswer to the latter view it is deemed sufficient to say that the return Of
918
FEDERAL REPORTER, \"01.
48.
of the, penitentiary only authorizes Min to hold the the second sentence.' No reference is made in the retinn to any, proceedings prior toJ:nly The pl1isonauthoritiesCDuh'Qld.her upDn a sentence delivered four'mllnthsbefore, of which they .ba\tElneverheard,even though the sentence were valid. If the 13enteuo6. of, July 9th is void the petitioner must be l'eleased. So the questiM is, had the court jurisdiction to pronounce the sentence-of that date? Ina paper submitted by the United States district attorney for the District of Columhia it is apparently conceded that the second sentence was not _pronounced at the same term as the first, for he says: "On the.9,tbof,July (in the Apriltermj the sentence of the previous term was set asid!'lin 0'£ the decision of the U. 8. supreme COUl't in the Mtlls ",
It. is thought-that this view is the correct one. The Jahuary term could not have been kept alive after the commencement of the April term for tbepurpose of revoking senten('es theretofore given and pronouncing new ones, The rules· of the court provide for the prolongation of the term fOl"the purpose of settling and signing bills of exceptions, and for this purpose only. The terms of the supreme court of the District of Columbia are appointed by the court in general term, but this is done pursuant to, statute, (25 St. at Large, 749,) and the terms when thus. fixed ha ¥e' the same stnbilityas 'if designated by an act of congress. Section 845:of the Revised Statutes,rl:lating to the District of Columbia, provides, not ,for'a suspension of, the sentence, but for a postponement of the execution,of the sentence,! 10 enable the convicted party to apply f<;>:r a writ the postponement shall in no case exceed 30 days after t1)e end ,of the term.Olearly, thissectioniri no way aids the validityof tbesecond sentence. The proposition that when a term of court begins.the. prior term ends is firmly established, and 1 see nothing in the statutesrelllting to the supreme court of the District of Columbia to take it out ,oftbe general rule; "As was said by Mr. Justice CLIFFORD in the dissenting opinion fn&parteLange, 18 Wllll. 192: ' "Every term' continues uutil the. call of thene"t succeeding tE'rm, unless prjlvioqsly ,MJourDtld8lne. die,' and until that time the judgment may bemiJd· illed or litricken out. Noananv.1!'I'.04ley, 12 Wall. 129i King v. Justices, 1 Maule & S. 442." As the January term could not ,be continued; tm July 9th, it follows that sentence of that date,. under which the petitioner is held, was pronounced at the April term, three months after its commencement. I. not uuderstan,d tbat it fsnow contended that a valid sentence made at one. term can be set .aside' and·a different and more severe sentence pronounced at a subsequent term. The rule that this cannot be done is 1 Bisb.Crim. Proc.§ 1298; Com.v. Weymouth, 2 Allen, 144j 1 Crim,., Pl. 262jMiller v. Finkle, 1 Park.Crim. R: 374;2 Hilwk,. p. 634, c. 48,§20; ,Rex. v. Price, 6 East, 327; Com. v. loy, , '. ' ,It 4J.Buggested,however, that the proceedings of May 15th were absotl;ae decision in the Mills Case, ,so that the court was
EX pARTE FRIDAY.
919
justified in trllating the case as one standing on the verdict where the sentence had, in' the mean time, been suspended. As a matter of fact the case was Iiotcontinued' upon the verdict under a suspended sentence'. This would seem sufficient, but various other answers suggest themselves. Three only will be considered. ' , 1. Assuming, fora moment, that the doctrine of the Milla Case plicable, it is thought that'the first judgment was not absolutely It was irregular; l:rot it was not a nullity. A wrong place of ment was designated. But this was not necessarily a part of the tencej and the judgment would have been perfectly regular if at any time during the January term the place of imprisonment had been changed from the penitentiary to the jail. E:tparte Waterman, 33 Fed. Rep. 29." So, too, an amendment increasing the term ,of imprisonment, if made at the same term, would, probably, have ciited the defect. The language of Mr. Justice MILLER in the Lange Case, B'ltpra, is applicable. He says;r(page 174:) "A'ndso it is said that the judgment first rendl'red In the present case, be'· ing erroueolls,must be treated as no judgment. arid,therefore, prl'senting no bar to tburendition of a valid judgment. The argument is plausible but un· Bound. T/le pow,er ofthe.(l()urt over tbat judgment just the S1ime, whptber it was void or, valid. "If the. il}stallce, relldered a jUdgment for two yell-rs' it cotild no doubt, on its'own motion, have vacated tbete,rm, and rendered a for one year's im· pnsonment; or, If no part of the sentence bad been executed, it could· have rendered a jUdgment fur tWo hundred dollars fine after vacating the first. Nor are we prepared to say, if a case could be found where the first sentence waswholly andabsolutelyv.oid,as where a judgment was rendered when no wl¥:l and when n9 V()id that the ofl)cer w the prisoner 11 nder it would. be liable, or ,the prisorwrat per,feet libertY.' tQ by force,-whether the payment o.f ,money or impris;onmeutunder such order would be a bar to on the same conViction. On tbiS, we have nothing say, 1 11,0 sucb case before us. The jUdllment first rendered, though erroneous, was not abo solutely void; It was rendered by a court which bad jurisdiction of the party and. of the offense, on a valid verdict."
It seems very clear that in no aspect of the the judgment of March 15th be treated as so absolutely invalid {hat it could be wholly ignored. ' 2. WaS the first judgment even irregular, was it in anymanner affected by the decision in the Mills Case'! I think not, audfor the fo1lowing reasons: Mills was imprisoned for one year under section 3242 of the Revised Statutes, as amended February 8, 1875, (18 St. at Large, 307,) which· provides for imprisonment (not at hard labor) for not less than 30 days or more than two years. The court decides that "a sentence simply of 'imprisonment/in the case of a person convicted of an offense against the UnitedStates,-where the statute prescri\jing the punishmentdoes not require that the accused shall be confined ina penitentiary;........eannot be executed by confinement in a penitentiary,· except in cases in whii:Jh the sentence is ·for a period longer than one year.'" It is thought that the supreme coart did not intend this decision to apply
\
920
FEDERAL RF..PORTER,
to a sentence under a section ofthe statutes making it,the imperative duty .court to imposeha'rd labor. To hold that it does apply makes the ,.enforcement of some of the most important sections of the Revised Statutes simply impossible. Very many of these sections require imprisonment at hard labor, leaving the term entirely in the discretion oftha court. hard labor for not more than three years," or "not more than five years," or "not more than ten years," is the language of the law. Cases constantly arise under these sections where the court is of the opinion that the ends of justice are fully met by an imprisonment at hard labor for less than a year, Ilud often for less than 8ix months. Other Sec:tioDS fix the term absolutely at less than a year. Take section 5471, for instance: "And any person who shall take or steal any mail or package of newspapers from any post-office, or from any person having.custody thereof, shall be imat hard labor for not more than three months." If the view which induced a change of the March judgment in this is correct, hO\y can a sentence under these be executed? Certaiply nl>t ina penitentiary, for the judge is precluded, in the one case by his conscience and in 'the other by the express language of the la-tv, from making the term of imprisonment longer than a year. And not ina county jail, surely,for the statutory ()Ondition of hard labor cannot 'be executed in a jail. But an additional, to my mind unanswerable, argument is found in sec.tion 5542 of the Revised Statutes. which is the section immediately following the one considered in the Mill8 Case. It provides: every case where any criminal convicted of any offense against the United States Is sentenced to imprisonment and confinement to hard labor, it shall be lawful 'for the court btwhich the sentence fs passed to order the sante to be executed In any state jail or penitentiary the dIstrict or state where such court is held, the use of which jail Or penitentiary is allowed by legislature of the state for tbat purpose." This has been the law since March 3, 1825. 48t. at Large, 118. Section 5541, passed 40 years later, applies to cases of imprisonment only, and such imprisonment 'can be in a penitentiary only when the sentence is fo;r a period longer than one year. Section 5542 relates to crimes requiring imprisonment at hard labor, and provides for the executionof the sentence in a penitentiary, without any reference to the hlDgth of the imprisonment. .It is difficult to see how language could be:!!elected more clearly emphasizing the evident distinction in the minds of the law-maker!! between imprisonment only and imprisonment at hard labor. In the one case the imprisonment may be in a penitentiary if longer than one year; in the other the imprisonment, whether for six yearaor six months, may be in a penitentiary or state prison. Turning now to therec:ord in the case at bar there can be little doubt that .it Was one requiring imprisonment in a penitentiary. The petitioner Was cqnvicted of grand larceny, an infamous offense and a felony at common law. Section 1144, Rev. St. D. C., provides that any person, convict13d in any c{)urt in ,the District of any of a number of
921
larceny being one, shall be sentenced to suffer punishment by imprisonment "in the' penitentiary» for the periods respectively prescribed in th6 chapter relating to crimes and offenses. Section 1158, Id., provides that every person convicted of grand larceny" shall be sentenceu to suffer imprisonment and labor" for a period not less than one year or more than three years. From thpse sect;ons it would seem clear that the court was entirely correct, if he thought the punishment sufficient, in fixing the term at one year, and that under the language, "at labor" and "in the penitentiary," just quoted, he was compelled by law to order the sentence executed in a penitentiary. The case would seem to be directly within the exception pointed out in the Mills Case, where the statute prescribing the punishment does require that the accused shall be confined in a penitentiary. 3. In view of the foregoing I have not deemed it necessary to inquire whether the imprisonment prescribed by the first sentence was not for a period longer than one year. The term of imprisonment was de facto for two years-one year on each count. There was but one indictment, one trial, and one judgment. Did the fact that the judgment required two terms of one year instead of one term of two years preclude the court from considering as one case? Carlton v. Com.; 5 Metc.(Mass.) 532. Was it not "a case"where the person convicted was "sentenced to imprisonment for a period longer than one year" within section 5541? An affirmative answer would seem to be a common-sense answer. .An interpretation of the law should be sought which will permit the courts charged with the practical execution of the criminal law to administer it not only with a due regard for the interests of tbe public, but for the benefit of the criminal as well. Every reasonable construction should be adopted which enables the courts to send convicted criminals totbe penitentiaries, where tbeyare taught habits of industry and are surrounded by salutary influences, than to those hot-beds of idleness and crime, tbe county jails. To recapitulate. It is thought that the following propositions are established: Pirst. The court had no power to continue the January session until the 9th of July-long llfter the April term had commenced-for the purpose of ,vacating the March sentence and pronouncing a new one. Second. The first sentence was vacated, and the second sentence passed not at the January but at the next term, the April term, of the court. Third. The first sentence was valid, and the court had no power at the April term to pronounce a new sentence increasing the term of petitioner's imprisonment. Fourth. The second sentence being invalid and the superintendent of the penitentiary holding the petitioner upon no other jUdgment, it follows that she is entitled to a release. Discharge granted.
FEDERAL REPORTER, vol. 43. PEORIA ,'f TARGET
CO.
t'.
CLEVE;LAND TARGET
Court, N. D.· Ohio. May 27, 11190.) ' ,.':
1.
PATENTS POR INVBNTIONS-PATENTABILITY-ANTICIPATION.
.
.!;'/
Relssned letters patent No. 10,867 issued September 13. 1887, toN. Grier Moore, administratOr of ,Charles F.Stock, fora trap having a throwing arm, with a piVoted ex.tension pro..ided with means'for' automatically releasing a target, describes a useful and Jl.ovel invention which had not been anticipated. . "
lL ,SAME__REISSUB-MISTAKlIl IN ORIGINALAI'PJilCATION.
The,drawlngs,speei1l,cations, and invention clearly set forth In tbe application for letters patent No. 295,302, issued March to'Charles F. StocK, clearly covered the pivoted carrier claimed in reissued letters patent No. 10,867.' Themechan111m described In tbe originalapplication is the same as in the reissued application. The features of the construction and tbe illustrations are the same in both applications. When Stock's application for the original patent was prepared hewas sick, and tbe appli\latlon contail1ed no claim for, the pivoted carrier, but as soon as the patent·was issueli he noticed tbe defect; and said he proposed to,have the error corrected. He dleE4 ,however, soon afterwards, without having It ,done. Retd, that there was such, &miBtllke as was properly corrected, by reissue to his administrator covering pivoted carrier. ' TAA;patentee B balf intl:lrest,in the original patent to the 1. W. H. Co. After the patentee's death his administrator, M., assigned the patent to W., after jl>inltig with the I, W. H. Co. in surrendering the patent 'and in filing apPlication. for t.b.e reissued pat/lnt, wbich was granted to M." as adm:nistrator. After the reissue of the patent tue I. W. H. Co. and W. conveyed all t.hell' t.ltle to complainant. Held, that complainant's title wasgopd. ,.
8.
'In Equity.
Taylur E. Brqwn andC.a. Pool, for complainant. Web_« .!iond Watson «. Thurston, for
RIOK$, .J. This .suit is brought upon reissued letters patent No. 10,867. September 13, 1887, issued to N. Grier :Moore, !iodministrator ofOhadElS:F'. StoQk. The origintl1 patent was dated March 18,1884, and .uu,lUbered 295,302, and was issue<l to. Oharles F. during his life-time.· In January, 1885, Stock surrendered his original letters patent. !and,filed anappHcation for a reissue upon a corrected and amended specitiCf.'tiQD.. This application in an interference proceeding involving four· ,other parties. The· conclusion of the proceedings· was to Stock, and a reissued patent was awarded of date and number.above stated. . . The fi.rstqueliltionpresentedbytherecord is as to complainant's title to the letters patent. The original patent was issued March 18, 1884, and OIl.June 11 th of.the same year Stock sold and assigned an nndivided one-half interest in. it to the Isaac Walker Hardware Company. On October 28,.1884:, ¥r. Stock died, and on .December 17,.1884, N. Grier Mopre· llopppinted. adJIlinistra,tor: ufthe estate, pursuant.to authority conveyed by 'the county court of Peoria county, Ill. Moore, as administrator, conveyed and assigned to Edwin H. Walker this and other patents, in which transfer Mrs. Stock jOined, but prior to this assignment, and on the 26th day of January, 1885, Moore, as administrator, and the Isaac Walker Hardware Company, joined in surrendering the original patent, and in filing application for the reissued patent, which was