42 F.2d 788 (10th Cir. 1930)

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White v. Pearlman

Circuit Court of Appeals, Tenth Circuit

Sep 4, 1930

42 F.2d 788 (10th Cir. 1930)

Summary

holding that when a "prisoner is [erroneously] discharged from a penal institution, without any contributing fault on his part, and without violation of conditions of parole, ... his sentence continues to run while he is at liberty"

Summary of this case from United States v. Grant

See 22 Summaries

Opinion

No. 194.

September 4, 1930.

Appeal from the District Court of the United States for the District of Kansas, First Division.

Habeas corpus proceeding by David Pearlman against T.B. White, as Warden of the United States Penitentiary at Leavenworth, Kan. From an order granting writ, the Warden appeals.

Affirmed.

Donald Little, Asst. U.S. Atty., of Kansas City, Kan. (Sardius Mason Brewster, U.S. Atty., L.E. Wyman and Dan B. Cowie, Asst. U.S. Attys., all of Topeka, Kan., on the brief), for appellant.

Lee Bond, of Leavenworth, Kan., for appellee.

Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.

McDERMOTT, Circuit Judge.

The warden of the United States Penitentiary appeals from an order granting a writ of habeas corpus. It appears that on March 17, 1925, the United States District Court for the Northern District of California sentenced appellee to a term of five years' imprisonment. The Texas state penitentiary was designated for his confinement. On June 5, 1926, the warden advised the prisoner that his term would expire on July 5, 1926, and asked him to what point he wanted transportation. The prisoner told the warden there was some mistake, that his sentence was for five years. The warden told him that the records showed three years, and he was going to abide by the records. Accordingly the prisoner was "dressed out," paid up, given a discharge, and furnished with transportation. He re-established his home, and more than two years later was advised that he was wanted. He voluntarily returned to Texas, and the authorities then committed him to Leavenworth to serve the rest of his sentence. He remained there until his five-year term, less the statutory allowance for good behavior to which his prison record entitled him, had more than elapsed, if his sentence was running during the time he was out. He then applied for this writ.

There is no doubt of the power of the government to recommit a prisoner who is released or discharged by mistake, where his sentence would not have expired if he had remained in confinement. Leonard v. Rodda, 5 App. D.C. 256. Nor can there be any doubt that an escaped prisoner cannot be credited with the time he is at large. Dolan's Case, 101 Mass. 219; Petition of Moebus, 73 N.H. 350, 62 A. 170. A prisoner on parole, who violates the conditions of the parole, is in legal effect an escape, and is not entitled to deduction for the time he was on parole. Anderson v. Corall, 263 U.S. 193, 44 S. Ct. 43, 68 L. Ed. 247; Drinkall v. Spiegel, 68 Conn. 441, 36 A. 830, 36 L.R.A. 486.

There is language in some of the opinions in the above cases which, taken from its setting, supports the position of the warden that no matter what the circumstances a prisoner must serve his time, unless pardoned or legally discharged. But opinions must be read against the background of the facts; and the facts in none of the cited cases reach the case at bar. We have here a case where the prisoner was released without fault on his part; he cannot fairly be considered as an escape or a parole violator. Furthermore, he called attention to the mistake being made and was brushed aside. He was, in substance, ejected from the penitentiary.

A prisoner has some rights. A sentence of five years means a continuous sentence, unless interrupted by escape, violation of parole, or some fault of the prisoner, and he cannot be required to serve it in installments. Certainly a prisoner should have his chance to re-establish himself and live down his past. Yet, under the strict rule contended for by the warden, a prisoner sentenced to five years might be released in a year; picked up a year later to serve three months, and so on ad libitum, with the result that he is left without even a hope of beating his way back. It is our conclusion that where a prisoner is discharged from a penal institution, without any contributing fault on his part, and without violation of conditions of parole, that his sentence continues to run while he is at liberty. As tending to support this conclusion, see Ex parte Eley, 9 Okla. Cr. 76, 130 P. 821; In re Jennings (C.C. Mo.) 118 F. 479, opinion by Circuit Judge Thayer; In re Strickler, 51 Kan. 700, 33 P. 620. As to whether a prisoner, who knows a mistake is being made and says nothing, is at fault, we do not now consider.

The order appealed from is affirmed.

Summaries of

White v. Pearlman

Circuit Court of Appeals, Tenth Circuit

Sep 4, 1930

42 F.2d 788 (10th Cir. 1930)

Summary of this case from United States v. Grant

holding that prisoner's sentence continues to run during time prisoner is at liberty after released from incarceration mistakenly, through no fault of his own

Summary of this case from Palacio v. Nash

finding where a prisoner is discharged from a penal institution, without any contributing fault on his part, and without violation of conditions of parole, his sentence continues to run while he is at liberty

Summary of this case from Buckley v. Parole Bd.

In White, the warden informed a prisoner that his time in prison had ended and, over the prisoner's objection that the warden was incorrect, "the prisoner was ‘dressed out,’ paid up, given a discharge, and furnished with transportation" out of the prison.

Summary of this case from United States v. Grant

In White, we considered the habeas petition of a prisoner who, through no fault of his own, was released from prison two years before his sentence expired.

Summary of this case from Bowie v. Franklin

explaining that there is "no doubt" about the government's power to reincarcerate an erroneously released prisoner

Summary of this case from Evans v. Secretary Penn. Dept. of Corrections

describing with examples the evil the doctrine is meant to prevent

Summary of this case from King v. Shultz

In White v. Pearlman, 10 Cir., 42 F.2d 788, 789, it was said: "* * * Nor can there be any doubt that an escaped prisoner cannot be credited with the time he is at large.

Summary of this case from Reese v. Looney

In White v. Pearlman, 10 Cir., 42 F.2d 788, we held that the sentence of a prisoner discharged from a Federal penitentiary without his fault before the expiration of sentence continues to run while he is at liberty.

Summary of this case from Hunter v. McDonald

In Pearlman, the court found the government may recommit a released prisoner who was dismissed by mistake, where his sentence would not have expired if he had remained in confinement.

Summary of this case from Hughes v. Oliver

In White, a prisoner confined in a Texas state penitentiary for a federal crime was released prematurely before serving his entire federal sentence.

Summary of this case from Washington v. Zuercher

In White, the Tenth Circuit pronounced in dictum that there could be "no doubt of the power of the government to recommit a prisoner who is released or discharged by mistake, where his sentence would not have expired if he had remained in confinement."

Summary of this case from Warnick v. Booher

stating that there could be "no doubt of the power of the government to recommit a prisoner who is released or discharged by mistake, where his sentence would not have expired if he had remained in confinement"

Summary of this case from Wray v. Ward

noting that a sentence of five years means a continuous sentence, unless interrupted by escape, violation of parole, or some fault of the prisoner; the violation of the terms of parole is in effect an evasion of the terms of that custody

Summary of this case from Villegas v. Quarterman

In White, the prisoner had served part of his five-year prison sentence, was mistakenly released, and later returned to prison "to serve the rest of his sentence."

Summary of this case from Nitchman v. State

In White v. Pearlman, 42 F.2d 788 (10th Cir. 1930), it was determined that a prisoner cannot be required to serve his sentence in installments.

Summary of this case from Derrer v. Anthony

In White, Pearlman had been sentenced to a five-year term in a Texas federal prison; however, he was prematurely released after the warden mistakenly thought Pearlman had been sentenced to only a three-year term. Of significance, Pearlman had unsuccessfully "protested" his premature release — claiming that he was sure he had been sentenced to a five-year term and that the warden must have made a mistake.

Summary of this case from Pugh v. State

In White v. Pearlman, 42 F.2d 788 (10th Cir. 1930), a prisoner was released from state prison prematurely by mistake without fault on his part. He reestablished his home, and the mistake was not discovered for two years.

Summary of this case from Merchant v. State

In Pearlman, the court specifically declined to address the issue presented by this case, stating that "[a]s to whether a prisoner, who knows a mistake is being made and says nothing, is at fault, we do not now consider."

Summary of this case from Gaines v. Fla. Parole

In Pearlman, the prisoner was pre-maturely and mistakenly "ejected" from the state penitentiary, despite pointing out to the warden that there must have been some mistake, and that his sentence had not expired. Affirming the district court's granting of habeas corpus relief, the Tenth Circuit held that "where a prisoner is discharged from a penal institution, without any contributing fault on his part, and without violation of conditions of parole,... his sentence continues to run while he is at liberty."

Summary of this case from Gaines v. Fla. Parole

In Pearlman, the defendant was erroneously released, even after he tried to bring the mistake to the warden's attention.

Summary of this case from State v. Chapman

In White v. Pearlman, 42 F.2d 788 (10th Cir. 1930), cited with approval in Watson v. Enslow, 183 Colo. 435, 517 P.2d 1346 (1974), the defendant was committed to a term of five years.

Summary of this case from People v. Battle

White v. Pearlman

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