179 U.S. 316
Ex parte DE BARA, Petitioner.
Submitted November 5, 1900.
Decided December 3, 1900.
Mr. D. W. Baker for petitioner.
Solicitor General Richards for respondent.
Mr. Justice McKenna delivered the opinion of the court:
Upon filing the petition in this case a rule to show cause was issued to John L. M. Donell, superintendent of the House of Correction at Detroit, Michigan, by whom it is alleged the petitioner is illegally restrained of his liberty.
The petition shows that the petitioner was convicted in the United States district court for the northern district of Illinois, upon the charge of violating 5480 of the Revised Statutes of the United States, which prohibits the use of the mails for fraudulent purposes, and that on June 17, 1899, he was sentenced as follows:
That the sentence was made to run from June 20, 1899, and since said day the petitioner has been confined in the House of Correction at Detroit, Michigan. That although there was but one offense committed by him, there were filed against him numerous indictments, all of which charged in a different way the same offense, and all were for violating 5480
That the record shows that the petitioner was convicted of the offense set out in said section, and that he was sentenced to a greater punishment than prescribed therein; that there was pronounced against him but one sentence, 'as upon his having been found guilty by a jury in due form, as charged in the indictment filed against him, and that the said several other indictments were mere surplusage, and a restatement of the matter contained in indictment No. 3012, and that no evidence was given against your petitioner except evidence of the offense stated in indictment No. 3012,' and that the 'sentence was null and void, and of no effect.'
That petitioner could not be imprisoned for a longer period than eighteen months; and that under the commutation for good behavior he would be entitled to a deduction of three months from said sentence; and that he has been confined for a full period of eighteen months, less the deduction of which he is entitled, and has fully satisfied any sentence which could be imposed on him, and he is therefore unlawfully restrained of his liberty.
A copy of the record is attached to the petition.
In his return to the rule the superintendent of the Detroit [179 U.S. 316, 318] House of Correction justified the detention of the petitioner by the judgment and sentence of the district court as follows:
Saturday, June 17, A. D. 1899.
The District Court of the United States for the Northern Division of the Northern District of Illinois met at 9 o'clock A. M. pursuant to adjournment.
Present: The Hon. Christian C. Kohlsaat, judge of said court, presiding; the clerk and marshal.
The United States
Edgar De Bara.
3012, 5480 vio. postal laws.
Come the parties by their attorneys, and the defendant in his own proper person, in custody of the marshal, to have the sentence and judgment of the court pronounced upon him, he having heretofore, to wit, on the 5th day of June, A. D. 1899, one of the days of this term of this court, being found guilty by a jury in due form of law as charged in the indictment filed herein against him, and the defendant being asked by the court if he has anything to say why the sentence and judgment of the court should not now be pronounced upon him, and showing no good and sufficient reasons why sentence and judgment should not be pronounced, it is therefore considered by the court, and as the sentence and judgment of the court upon the verdict of guilty so rendered herein by the jury as aforesaid, that the defendant, Edgar De Bara, be confined and imprisoned in the House of Correction at Detroit, Michigan, in the state of Michigan, for and during a period of three years.
The record contains only the indictment in cause No. 3012, and the return to the rule shows that the judgment and sentence under which the petitioner is held is designated by that number.
The indictments in the other case do not appear in the record, nor does the record contain the evidence, but the following does appear:
The United States
edgar de bara, fannie de bara. *>3012.
Come the parties by their attorneys, and in open court and [179 U.S. 316, 319] in the presence of the defendants, and with their consent, agree that causes numbered 3008, 3009, 3010, 3011, 3012, 3013, 3014, 3015, 3016, and 3017 shall be consolidated and tried with this cause, and that all of said causes be tried together by the same jury.
Thereupon it is ordered by the court that said causes be consolidated.
It further appears that on the 1st of June, 1899, under the same title and number, an order was entered reciting that on the 15th of May, 1899, pleas of not guilty to the several indictments were interposed, and that a jury (naming them) were duly impaneled and sworn 'in causes numbered 3007, 3008, 3010, 3011, 3013, 3014, 3015, 3016, and 3017 consolidated, in all of which said causes the United States is the plaintiff and Edgar De Bara and Fannie De Bara are the defendants, a true verdict to render according to the evidence.'
It also appears from the record that in cause No. 3012 the jury returned into the court with a verdict, and upon their oaths did say:
On the 17th day of June, 1899, the following order was entered:
The United States
Edgar De Bara, Fannie De Bara.
Comes the United States by S. H. Bethea, Esq., district attorney, and declines to prosecute the first count in each indictment in cases numbered 3007, 3008, 3010, 3012, 3013, 3014, 3016, and 3017, whereupon it is ordered by the court that a nolle prosequi be and the same is hereby entered herein, as to said first count in each of said indictments. [179 U.S. 316, 320] It is not correct, therefore, as contended by counsel for petitioner, that the judgment and sentence of the district court were confined to indictment in case No. 3012. The proceedings were entitled as of that case because of the consolidation, but the other cases did not lose thereby their identity and consequences. The judgment and sentence must be construed by the cases which were tried and upon which the jury rendered its verdict. The petitioner was found guilty as charged in the indictment in 3012 on all counts; also on all counts in 3009 and 3015, and on all counts 2 and 3 of the indictments in Nos. 3007, 3008, 3010, 3011, 3013, 3014, 3016 and 3017.
Therefore the only question for our determination is whether the court had the power under 5480 to give a single sentence for several offenses, in excess of that which is prescribed for one offense. The section provides as follows:
The question raised upon the statute is not an open one in this court. It is substantially ruled by Re Henry, 123 U.S. 372 , 31 L. ed. 174, 8 Sup. Ct. Rep. 142. In that case there were two indictments, each charging three [179 U.S. 316, 321] offenses. The petitioner was convicted on both indictments and sentenced on both. Upon serving out his first sentence he applied to be discharged on habeas corpus because, as he alleged, 'the court had no jurisdiction to inflict a punishment for more than one conviction of offenses under this statute committed within the same six calendar months.'
In passing on the contention the court, by the Chief Justice, said:
The rule is discharged.