made to the circuit court of the United States. for the eastern division of the southern district of Ohio for a writ of habeas corpus. The petition for the writ alleged as grounds for the prisoner's discharge from custody: (1) That cumulative sentences, as imposed by the court, were without authority of law and without power in the court. (2) That the sentences, except the first, were too uncertain and indefinite, in that they were made each to take effect upon the expiration of the preceding sentence, which itself was made uncertain, because the question of allowing credit for good time under the statute was discretionary, and not absolute. (3) That the consolidation of the indictments against the prisoner, and his trial on all of them at the same time, was a proceeding unauthorized by law, and the sentences for that reason void.

tively. These cases were, by order of the court, consolidated, and tried at the same time before the same jury. The trial resulted in a verdict of guilty on each of the indictments, and judgment and sentence were pronounced against the petitioner in each of the cases. The sentence in the first case was to eighteen months' imprisonment in the Ohio penitentiary and a fine of $500, and, in each of the seven cases following, thirteen months' imprisonment and a fine of $100 were imposed, the same to be applied to the indictments in their numerical order. The sentence in the second and each following case took effect at the expiration of the one next preceding. Mittimus issued, regular in form, under each judgment and sentence, directed to the marshal of the western district of Tennessee, and commanding him to commit the petitioner, Howard, to the Ohio penitentiary at Columbus, in the state Due return was made to the writ, with the of Ohio, to be there imprisoned for the terms answer of the warden of the penitentiary. fixed in the eight sentences. The defendant The writ was discharged upon the trial, the was ordered to stand committed until the sev-petition dismissed, and the petitioner, Howard, eral fines imposed and the costs of the prosecution were paid. When the defendant had served out the term of imprisonment imposed by the first sentence (the statutory deduction for good time being made), application was

Mass. Stat. 1857, chap. 284, 1858, chap. 77, and 1859, chap. 108. Opinion of the Justices, 13 Gray, 618. This case turns on the construction of the statutes rather than upon any question as to their validity, holding that the statutes give a right to the deductions and do not provide for a mere favor.

A convict discharged under the three-fourth's rule may be given a certificate of discharge by the warden of the penitentiary without any pardon from the governor, under Mo. Rev. Stat. § 7273, and therefore such a certificate may be put in evidence to show the fact of the discharge. State v. Austin, 113 Mo. 538.

It is for the officers of a prison to determine, in the first instance at least, whether an offender is being confined in prison for the first time or not, for the purpose of determining, under the Michigan act of 1893, his right to a good-time allowance, Re Canfield, 98 Mich. 644.

A prisoner cannot earn good time when out on parole under Ind. Acts 1883 (Elliott Supp. 8 2026), providing for an allowance to a penitentiary convict "who shall have no infractions of the rules or regulations of the prison or laws of the state recorded against him, and who performs in a faithful manner the duties assigned him." Woodward v. Murdock, 124 Ind. 439.

But the time that he is out on parole is to be counted, and the good time that he earned while in prison is to be considered, although during another part of the time he is out on parole. He is entitled to his discharge when the time of the sentence expires as reduced by his good-time credits, although he has been out on parole part of the time. Ibid.

Under How. Stat. (Mich.) §§ 9703, 9704, governing debits and credits for good conduct or misconduct of convicts in prison, it is held that the rules to be established on the subject should be plain, certain, and specific, and known to the inmates of the prison, and be adopted by the board of inspectors, and made a matter of record; also that the convict's record should be made known to him monthly, and the reports investigated by the inspectors each month at a regular meeting and a record made of their action, so that the convict's standing shall not rest upon any computation of the warden's clerk, but may be shown at once

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remanded to the custody of the warden of the Ohio penitentiary to complete his terms of imprisonment, in accordance with the sentences of the United States district court for the western district of Tennessee. On appeal to this

from the record, and that the convict should be given, if he desires, an opportunity to be heard upon the matter of his report. Re Walsh, 87 Mich. 466.

But while the rules on this subject ought to be written, yet an unwritten rule or custom which has been in force for twenty years or more, to deduct for each infraction of a prison rule, whether trivial or serious, as many days of good time as the prisoner would be earning under the law each month in the year of such infraction, should be held operative and binding on the prisoner, and also upon the board of inspectors until the rule is changed. Ibid.

A commutation by the governor of a sentence of imprisonment for life to one of "nine years of actual time," providing for a discharge "when he shall have served nine years actual time in the said penitentiary," is not subject to Neb. Crim. Code, § 569, providing for good-time reductions. Re Hall, 34 Neb. 206. This decision is based on the construction of the governor's commutation which is said by its terms to show that he intended the reduced sentence to be for nine years of service within the penitentiary.

The failure of the superintendent of the penitentiary to keep a "good-time account" of the prisoners, as required by Mill. & V. Code (Tenn.) § 6338, and by the act of 1869–70, T. & S. Code, § 5559ɑ, subs. 7, is held, in State v. McClellan, 87 Tenn. 52, to raise a presumption that a convict is entitled to the good time, and the want of the register or good-time account cannot be supplied by oral evidence, although such evidence might perhaps be heard to corroborate or to contradict such a record.

One sixth of the time of the sentence is to be deducted from the whole term when it does not exceed two years, and no charge is recorded against the prisoner under Neb. Crim. Code, § 569, and the term of imprisonment is to be dated from the time of sentence and not from the time the prisoner is delivered to the warden of the penitentiary, although the officer has thirty days in which to deliver him. Re Fuller, 34 Neb. 581.

The denial of good-time allowance to a thirdterm prisoner under Mich. Pub. Acts 1893, No. 118, § 33, applies to a prisoner in the state prison at Marquette who has previously served two terms in

merit, and were not insisted upon by the petitioner's counsel on the argument in this court. This petition, which is signed, and sworn to by petitioner alone, was, on motion, dismissed by the circuit court, and the case is here again by appeal. The judgment of the court deny ing the petition is as follows:

The

against the prisoner. This is the purpose and
effect of the copy, and nothing more.
prisoner is not commited by virtue of the copy,
but by virtue of the judgment of the court,
and the mittimus issued pursuant thereto; the
real valid authority under which the mittimus
is issued being the sentence of the court.

In People, Trainor, v. Baker, 89 N. Y. 461, "This cause coming on to be heard on the petition of G. F. B. Howard for a writ of Earl, J., said: "But the relator was not dehabeas corpus, upon consideration, the court tained, or required to be detained, by virtue of He was detained by virtue of finds that the petition shows the prisoner to be any warrant. in lawful custody, and does not state a case the judgment of the court, and that judgment Wherefore it is or- was a sufficient authority for his detention. for the issuance of a writ. dered that the petition be denied, at the costs The warrant of commitment is simply an auof the petitioner. Whereupon the petitioner thority and direction to the sheriff or other of applies to the court for an allowance of an ap- ficer to convey the prisoner to the penitentiary. peal to the circuit court of appeals for the That need not necessarily to be left with the sixth circuit from the order denying the peti-keeper. If he has no other evidence of his aution, which appeal is accordingly allowed, and thority to detain the prisoner he should have the clerk is directed to issue a citation upon that. But, if the officer who brings a prisoner such appeal to the United States attorney for to the penitentiary furnished the keeper with a the southern district of Ohio, as the representa- certified copy of the judgment of the court, tive of the United States, who will be the ap- then that is sufficient evidence of the keeper's pellee in the proceedings on appeal in the cir- authority and he needs to have no other. prisoner who has been properly and legally cuit court of appeals." sentenced to prison cannot be released simply because there is an imperfection in what is commonly called the 'mittimus.' A proper mittimus can, if needed, be supplied at any time; and, if the prisoner is safely in the proper custody, there is no office for a mittimus to perform."

It will be seen that the judgment is based on the petition alone and what appears therefrom. The objection based on the omission in the mittimus iu 1,728 will be disposed of first.

By 1028 of the Revised Statutes it is provided: "Whenever a prisoner is committed to a sheriff or jailer by virtue of a writ, warrant, or mittimus, a copy thereof shall be delivered to such sheriff or jailer, as his author ity to hold the prisoner, and the original writ, warrant, or mittimus shall be returned to the proper court or officer, with the officer's return thereon."

A

This ruling is supported by the previous case of People v. Nevins, 1 Hill, 154, followed and approved by the Supreme Court of the United States, in Ex parte Wilson, 114 U. S. 422, 29 L. ed. 91.

And so in Sennott's Case, 146 Mass. 489, The contention is that under this stat- Knowlton, J., giving the opinion of the suute the copy of the mittimus furnished by preme judicial court of Massachusetts, and anthe marshal to the warden of the peniten-swering a similar formal objection to the mitThe imprisonment rests upon tiary is made the warden's only authority for timus, observed: "Besides, we have the judg detention of the prisoner, and that, the copy ment before us. in possession of the warden being void on the judgment, and the mittimus is important account of the defect mentioned herein, the only as a direction to the officer, and as eviprisoner's restraint is unlawful. Omitting the dence of the authority which the judgment direction and proper teste of the mittimus, gives. the body thereof is as follows: "You are hereby commanded to commit the defendant, Joseph Leger, alias G. F. B. Howard, to the Ohio penitentiary at Columbus, Ohio, there to be imprisoned for the term of thirteen months, the expiration of his term of imprisonment under indictment No. 1,727, in accordance with a sentence of this court pronounced against said defendant on this the 4th day of January, 1894, for the crime of violating the laws of the United States in unlawfully using the mails with intent to defraud."

This contention does not require extended treatment. The warrant or order of commitment is simply an authority and direction to the marshal to take the prisThe copy oner to the penitentiary named. furnished by the marshal or clerk to the warden is merely evidence, and evidence only, of the judgment and sentence of the court and the mittimus issued thereunder. The statute makes this evidence of a regular court judgment and mittimus sufficient authority and protection to the warden, and the warden is not required to go beyond this copy in satisfying himself of the existence of a valid sentence

People, Trainor, v. Baker, 89 N. Y. See also Ex parte Gibson, 31 Cal. 620, 91 460. Am. Dec. 546; Ex parte Kellogg, 6 Vt. 511." Moreover, as will be seen, the copy of the mittimus under No. 1,728, attached to the petition, refers to the sentence on indictment No. 1,727, and to the sentence of the court pronounced in No. 1,728, giving the character of the crime. The judgment of the court is not only thus referred to, but, as we have seen, a copy of the transcript of the judgment is attached to the petition, and made a part thereof. The judgment appears from this transcript to be regular in all respects, and makes the period of imprisonment, as well as the time of its commencement, clear, and shows that the sentence of the court contains no such defect or omission as that pointed out in the copy exhibited with the petition; and that the omission in the copy furnished by the marshal to the warden is a mere clerical For each and all of these reasons, we error by the marshal or clerk in making such copy. are of opinion that the defect pointed out in A pethe petition furnishes no ground whatever for the writ, and is entirely without merit. tition which does not impeach the judgment or original mittimus, directed to the marshal, 33

under which petitioner was actually committed, | states no case for the writ. On the trial of the first petition, a full transcript of the record in the court of original jurisdiction was introduced, and was on file in the court below at the time of the judgment on the second petition, and a copy is also on file in this court. From this it fully appears that the original sentences and the original mittimuses issued thereunder are in all respects regular; and it is argued that the court below might look to that transcript, and that, in support of the judgment below, this court may also inspect the transcript on file in this court. The disposition thus made of the objection, based on the defective copy, renders it unnecessary to decide this point. As has been seen, the action of the court below was based upon the petition alone and the papers attached thereto; and, in reviewing the judgment of the court below, we do not think we are at liberty to dispose of the case on matter appearing in a record different from that on which the judgment below was based.

count. The Supreme Court of the United States held that the motion in arrest of judg ment should have been sustained also as to the first count in the indictment, and affirmed the judgment as to the third count, and directed that the term of imprisonment under the third count should be held to commence on the day named for the commencement of the first term. As judgment was pronounced on both the first and third counts in the court below, the imprisonment under the third count commenced upon the expiration of the judgment on the first count. The contention of the plaintiff in error was that the cause should be remanded, with directions for a new trial. In answering this question, Mr Justice Harlan, giving the opinion of the court, said: "In Kite v. Com. 11 Met. 581, 585, it appeared that the accused was sentenced for a named period to confinement at hard labor, to take effect from and after the expiration of three previoussentences specified. The judgment was ob jected to as erroneous and void, because there This brings to us the question of the right were not three former sentences, legal and and power of the court to impose cumulative valid, and therefore no fixed time from which and successive sentences. This question may the punishment on the last sentence should bearise in a given case upon a conviction on dif- gin. Chief Justice Shaw, referring to this ob ferent counts in the same indictment charging jection, and delivering the unanimous judg distinct offenses, or upon conviction at the ment of the court, said that it was not error in same term on separate indictments for distinct a judgment in a criminal case to make one term offenses. The principle involved is, however, of imprisonment commence when another terthe same as the right to join distinct offenses in minates. It is as certain,' he said, 'as the nadifferent counts in the same indictment and is to ture of the case will admit, and there is no avoid, to both parties, the burden and expense other mode in which a party may be sentenced of two or more separate trials. If this ques- on several convictions. Though uncertain at tion depended upon the law of the state where the time, depending upon a possible continthe petitioner was tried, there is a statute ex-gency that the imprisonment on the former pressly authorizing cumulative sentences. Tenn. sentence will be remitted or shortened, it will Code, § 5228; Mitchell v. State, 92 Tenn. 672. be made certain by the event. If the previous sentence is shortened by a reversal of the judg ment or a pardon, it then expires; and then, by its terms, the sentence in question takes effect as if the previous one had expired by lapse of time. Nor will it make any difference that the previous judgment is reversed for error. It is voidable only, and not void; and, until reversed by a judgment, it is to be deemed of full force and effect; and, though erroneous and subsequently reversed on error, it is quite sufficient to fix the term at which another sentence shall take effect.' See also Dolan's Case, 101 Mass. 219, 223. In these views we concur."

In the absence of an act of Congress upon the subject, however, the courts of the United States in the administration of the criminal law are governed by the rules of the common law. United States v. Nye, 4 Fed. Rep. 888; Erwin v. United States, 37 Fed. Rep. 488, 2 L. R. A. 229; United States v. Maxwell, 3 Dill. 278. And there can be no question of the power of the court to impose cumulative sentences for separate offenses, according to the very decided weight of authority at the common law. Rex v. Wilkes, 4 Burr. 2578; Castro v. Queen, L. R. 6 App. Cas. 241 (Tichborne Case); 1 Chitty, Crim. L. 718; Clark, Crim. Proc. 495; United States v. Patterson, 29 Fed. Rep. 775; Re Esmond, 42 Fed. Rep. 827; Blitz v. United States, 153 U. S. 308, 317, 38 L. ed. 725, 728. In Blitz v. United States the defendant was convicted on an indictment containing three separate counts, in which he was charged, in the first count, with personating and voting in the name of another; in the second, with voting at a precinct where he was not lawfully entitled to vote; and, in the third, with voting for the same candidate more than once; and a verdict of guilty was returned upon each count of the indictment. A motion in arrest of judgment was sustained as to the second count of the indictment, and overruled as to the first and third counts, and the defendant was sentenced on the first count to imprisonment in the penitentiary for one year and a day, and on the third count for a like period, beginning upon the expiration of the sentence on the first

Not only in Blitz v. United States were cumulative sentences imposed, but such was also the judgment of the court in Re Henry, 123 U. S. 372, 31 L. ed. 174, and in Re Mills, 135 U. S. 263, 34 L. ed. 108, and in other cases that might be referred to. And, while the authority to pronounce such judgment was not made a specific question in the cases, it was perfectly apparent in the cases that such practice had been pursued, and the Supreme Court of the United States, according to its own rules, reserves the right to "notice a plain error not assigned or specified." And, if the courts of the United States be without authority to pronounce cumulative sentences upon convictions of separate offenses, the error was so vital and so obvious in the cases that the court would certainly have felt called upon to notice it in the interest of the accused. Montana R. Co. v. Warren, 137 U. S. 348, 34 L. ed. 681.

And in Williams v. State, 18 Ohio St. 47, | be supported by no consistent process of reathe supreme court of Ohio said: "To hold soning. Under such a doctrine, a defendant that, where there are two convictions and judg- convicted of two or a dozen crimes would sufments of imprisonment at the same term, both fer no greater punishment than a person conmust commence immediately, and be executed victed of one offense, except such difference concurrently, would clearly be to nullify one as the statutory maximum and minimum limits of them. To postpone the judgment in one on the sentence might justify. Such a rule case until the termination of the sentence in finds no justification in law or morals. The the other would, if allowable, be attended with other cumbersome and uncertain methods sugobvious inconvenience and expense, without gested for dealing with the subject would in any correspondent benefit to the convict. effect result in complete failure. There is nothing in the statute requiring this, Counsel for the petitioner relies with much and it is not to be construed so as to defeat or confidence on People, Tweed, v. Liscomb impede the execution of its own provisions as (Treed's Case), 60 N. Y. 559, 19 Am. Rep. 211, to the punishment of crimes. We think, both and authorities cited therein. The doctrine of upon principle and the weight of authority, this case, however, has met with universal disthat we are required to hold that it is not er- approval. Mr. Bishop speaks of it as "a docror, upon a conviction in a criminal case, to trine elsewhere never heard of before and genmake one term of imprisonment commence erally rejected since." And in a note the when another terminates. There is but little author further says: "On the other hand, I have force in the objection that the term of the looked into all the cases cited from the books commencement of the second term is contin- of reports in Tweed's Case and into such others gent and uncertain. It is true that the first as seemed to afford any promise of instruction, term may be ended by a pardon or a reversal and I find no one, English or American, anof judgment, but its termination will be ren- cient or modern, which furnishes a precedent, dered certain by the event, and then the second or an authority, or even a dictum, for the consentence, by its terms, takes effect." clusion arrived at by the court." 1 Bishop, Crim. Proc. § 1327.

And the supreme court of Nebraska, answering a similar objection, and referring to certain cases cited as supporting the objection thus expressed its view: "But in our opinion the great weight of authority is in favor of the proposition that upon conviction of several offenses charged in separate indictments, or in separate counts of the same indictment, the court has power to impose cumulative sentences. See Whart. Crim. Pl. § 910; Bishop, Crim. L. 953; Kite v. Com. 11 Met. 581; Mims v. State, 26 Minn. 498; State v. Smith, 5 Day, 175, 5 Am. Dec. 132; Re McCormick, 24 Wis. 492, 1 Am. Rep. 197; Re Fry, 3 Mackey, 135; Ex parte Hibbs, 26 Fed. Rep. 421; State v. Robinson, 40 La. Ann. 730; Parker v. People, 13 Colo. 155, 4 L. R. A. 803; Mills v. Com. 13 Pa. 631; Brown v. Com. 3 Serg. & R. 273; Russell v. Com. 7 Serg. & R. 489; Williams v. State, 18 Ohio St. 46; Eldredge v. State, 37 Ohio St. 191: Bolun v. People, 73 Ill. 488." Re Walsh, 37 Neb. 454.

It is true that cases are to be found holding a contrary doctrine How far the decisions in such cases may have been influenced by legislation in the particular state we need not now stop to inquire. It is certain that such cases find little or no support in the common law, and certainly none in sound reason. The cases are practically agreed that separate of fenses may be included in separate counts of the same indictment. Ingraham v. United States, 155 U. S. 434, 39 L. ed. 213; Pointer v. United States, 151 U. S. 396, 38 L. ed. 208.

It is also a recognized method of procedure to consolidate separate indictments and try them at the same time as one case; and it is not an uncommon thing that the same defendant is convicted of more than one offense at the same term, upon separate indictments and trials. And a rule which denies the court the power to impose cumulative sentences turns the trial and conviction on all the indictments except one into an idle ceremony. It is hardly necessary to say that a rule which leads to such results as this is unsound in principle, and can

And the supreme-court of Colorado, in Parker v. People, 13 Colo. 155, 4 L. R. A. 803, said: "The doctrine announced in the Tweed Case has called for the severest criticism from our ablest criminal-law writers, and is contrary to the weight of authority both in England and in this country."

The Tichborne Case was one much considered by the English courts. The writ of error in the case was allowed by the attorney general out of respect to the ruling by the New York court in Tweed's Case. The case went first before the court of appeals, and on further appeal before the house of lords. The question of the soundness of the decision in Tweed's Case was therefore directly before the English courts. The decision was regarded by those courts as somewhat startling, and it was said, in effect, that, while the case might be good as American authority, the law of England was certainly otherwise. The English judges seem to have considered Tweed's Case only, and not to have been aware at that time that the weight of American authority was also against the ruling in that case.

We think the power thus to pronounce cumulative sentences exists in regard to felonies, as well as misdemeanors, although in the case at bar we are dealing with the misdemeanor grade of offense only. Reagan v. United States, 157 U. S. 303, 39 L. ed. 710; Bannon v. United States, 156 U. S. 464, 39 L. ed. 494.

We now come to the question of whether all of the sentences except the first were void for uncertainty. So far as this objection may be rested upon the ground that the second and subsequent sentences do not fix the date of commencement more definitely than as beginning at the expiration of the preceding sentence, the cases already referred to contain a sufficient answer. The real point of objection, however, as we understand counsel for petitioner, is this: That the sentences, except the first, are rendered uncertain by reason of the provisions of § 5544 of the Revised Statutes, as