by Nancy Boldt Vicknair
**This is a work-in-progress
@All rights reserved
No copying, nothing, nada. February 26, 2014
A handsome man sporting a well groomed mustache was hurrying to catch the early train to Jamestown, California. It was April 1899 when families and miners were heading to the hillsides of the lower Sierras to work, visit relatives or perhaps to view thousands of wildflowers at the peak of their bloom. The Sierra Railroad had just completed its tracks from Oakdale, California to bustling Jamestown which was alive with gold rush fever since gold had been discovered in 1849 nearby at Sutter's Mill.
On this one early Saturday morning, dapper train passenger Walter N. Dimmick had gold on his mind. Dimmick was not taking the train for a weekend jaunt. He was carrying a very heavy satchel that did not contain clothes or the documents he had told his wife he was delivering to Jamestown. Dimmick was not going prospecting for gold in the area or to sight see-instead he was carrying four heavy cans filled with gold coins to the place where he had been burying them secretly for a couple of years.
Coin by coin, Walter was bringing up the 1500 gold coins he had been stealing for approximately five to ten years from his employer in San Francisco-the U.S. Mint.
The author, Nancy Boldt Vicknair, has the exclusive right to copy, distribute and perform this work
Embezzlement: Walter N. Dimmick, Gold, Cans, and Secrets by Nancy Boldt Vicknair is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.
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WALTER N. DIMMICK, , v. JOHN W. TOMPKINS, Warden of the State Prison of the State of California, at San Quentin.
194 U.S. 540 (24 S.Ct. 780, 48 L.Ed. 1110)
WALTER N. DIMMICK, Appt., v. JOHN W. TOMPKINS, Warden of the State Prison of the State of California, at San Quentin.
No. 528.
Decided: May 31, 1904.
Dimmick, the appellant, presented his petition
for a writ of habeas corpus to the circuit court of the United States,
northern district of California. The petition was denied, and an appeal
taken to this court from the order denying the application. The
appellant alleged in his petition for the writ that he was unlawfully
imprisoned in the state prison of the state of California; that the
imprisonment was illegal and in contravention of the Constitution of the
United States, article five of the amendments to the same; that on
October 16, 1901, he was sentenced to imprisonment in the state prison
on by the district court of the United States in and for the northern
district of California for the period of two years, to date from the
16th day of October, 1901; that he had been imprisoned, under the
judgment, in the state prison ever since April 13, 1903, and that prior
thereto, and from the date of the judgment to April 13, 1903, he was
imprisoned, under said judgment, in the county jail of the county of
Alameda, by the order of the district court.
The appellant also alleged that,
notwithstanding the foregoing facts, the warden refused to discharge or
release him from imprisonment, although the term of said imprisonment
expired, according to its terms, on October 16, 1903. The appellant then
set forth in the petition a copy of the record of the proceedings of
the district court of the United States, which showed that he was
convicted in the district court on the 16th of October, 1901, of making
and presenting a false claim, as charged in the first count of the
indictment, and of using a portion of the public moneys of the United
States for a purpose not prescribed by law, as charged in the fourth
count; and that he was sentenced 'to be imprisoned at hard labor for the
term of two years from October 16, 1901; and it is further ordered that
said sentence of imprisonment be executed upon the said Walter N.
Dimmick by imprisonment in the state prison of the state of California,
at San Quentin, Marin county, California.'
The record was signed by the district judge who held the court.
The petition also set forth a copy of the
indictment under which the trial was had. It was founded upon §§ 5438
and 5497 of the United States Revised Statutes (U. S. Comp. Stat. 1901,
pp. 3674, 3707), and charged, in substance, the presentation to the
cashier of the mint at San Francisco of a certain false, fictitious, and
fraudulent claim against the United States, and known to be fraudulent
by the defendant at the time he presented it; also, with having
unlawfully used a portion of the public moneys for a purpose not
prescribed by law. The appellant averred that neither the first nor the
fourth count charged any crime or public offense against the United
States, nor the violation of any law of the United States, and that both
counts were fatally defective. The appellant also averred that the
judgment of the court, in as far as it required his imprisonment in the
state prison, was void because the United States district court
sentenced him for one year, and no more, upon each of the two counts of
the indictment referred to in the judgment, and did not sentence him to
imprisonment for a period of more than one year upon each of said
counts, and that a sentence to the state prison for a period of not more
than one year violated the statutes of the United States.
Mr. George D. Collins for appellant.
Argument of Counsel from pages 542-544 intentionally omitted
Solicitor General Hoyt for appellee.
Argument of Counsel from Pages 544-546 intentionally omitted
Statement by Mr. Justice Peckham:
The appeal directly to this court from the
decision of the circuit court denying the writ of habeas corpus was
proper under the averments contained in the petition, that the
imprisonment of the appellant was in violation of the Federal
Constitution. Craemer v. Washington,
168 U. S. 124, 127, 42 L. ed. 407, 408, 18 Sup. Ct. Rep. 1.
The appellant contends that, as his sentence
was imprisonment 'at hard labor for the term of two years from October
16, 1901,' his term of imprisonment under that sentence necessarily
expired by its own limitation on October 16, 1903, even without any
deduction for credits earned by good behavior.
If the appellant had been at once transported
to the state prison under the sentence imposed upon him after his
conviction, it is, of course, plain that two years from the time of his
sentence (if he remained there in the meantime) would be the extent of
his legal detention. In fact, he was not taken to the state prison until
April 13, 1903; but he avers that he had been previously, and from
October 16, 1901, the date of the judgment, to April 13, 1903,
imprisoned under said judgment in the county jail of the county of
Alameda, by the order of said district court. The sentence upon the
verdict of guilty is given in the record, which is made a part of the
petition, and that record shows that the appellant was 'sentenced to be
imprisoned at hard labor for the term of two years from October 16,
1901; and it is further ordered that said sentence of imprisonment be
executed upon the said Walter N. Dimmick by imprisonment in the state
prison of the state of California, at San Quentin, Marin county,
California.'
The imprisonment of the appellant in the
county jail could not, therefore, have been under the judgment which
prescribes imprisonment in the state prison. But such detention may have
been owing to his efforts to obtain a review and reversal of the
judgment, and, in the meantime, a supersedeas thereon, so as to prevent
his transportation to the state prison, and in that case such detention
should not be counted as any part of the time of imprisonment in the
state prison. In that event his imprisonment in the state prison, under
the judgment, should be counted from the time it actually commenced,
notwithstanding the statement of the sentence that it should be for two
years from October 16, 1901. The time of commencement was postponed by
his own action, and he cannot take advantage of it, and thus shorten the
term of his imprisonment at hard labor in the state prison.
Upon this writ the question to be examined is
one of jurisdiction; and in this case it is whether the warden of the
prison has the legal right to continue the imprisonment under the
sentence and warrant of commitment notwithstanding the expiration of two
years from the time of sentence. If, as we have said, the detention in
the jail was the result of his own action, and his imprisonment at hard
labor in the state prison did not, for that reason, commence until April
13, 1903, then the legal term of his imprisonment in the state prison
has not expired, and he is properly detained. As it was incumbent upon
the appellant to show his continued imprisonment was illegal (there
being no presumption that it was), the duty and the burden rested upon
him to aver, and, if the averment were traversed, to prove, that his
detention in jail had not been by reason of the fact suggested. This he
has not done. There is no such averment in the petition for the writ and
there is no proof of such fact to be found. Non constat, that he was
not detained for the very reason already stated. This is fatal to the
appellant, so far as this point is concerned.
As might be surmised, there was ample reason for not making the allegation. It would not have been true.
It appears from our own records that a
petition for a certiorari was filed in this court by appellant February
2, 1903, asking for a review of the above-mentioned judgment, and in
that petition it is stated that the appellant had teken proceedings to
have the judgment reviewed by the circuit court of appeals, and had
obtained a supersedeas thereon, and after the judgment had been affirmed
by that court, and on January 13, 1903, the district court ordered the
execution of the judgment thus affirmed to be stayed for the period of
thirty days from that date to enable the appellant to make application
to this court for a writ of certiorari, which application was made, and
denied by this court March 2, 1903.
189 U. S. 509,
47 L. ed. 923, 23 Sup. Ct. Rep. 850. In a case like this the court has
the right to examine its own records and take judicial notice thereof in
regard to proceedings formerly had therein by one of the parties to the
proceedings now before it. The principle permitting it is announced in
the following cases: Butler v. Eaton,
141 U. S. 240, 242, 35 L. ed. 713, 714, 11 Sup. Ct. Rep. 985; Craemer v. Washington,
168 U. S. 124, 129, 42 L. ed. 407, 409, 18 Sup. Ct. Rep. 1; Bienville Water Supply Co. v. Mobile,
186 U. S. 212, 217, 46 L. ed. 1132, 1135, 22 Sup. Ct. Rep. 820.
That the party seeking to review a judgment of
imprisonment in a state prison cannot take advantage of his own action
in so doing as to thereby shorten the term of imprisonment in the state
prison is, as we think, plain. To hold otherwise would be inconsistent
with the general principle that a person shall not be permitted to take
advantage of any act of another which was committed upon his own
request, or was caused by his own conduct. See McElvaine v. Brush,
142 U. S. 155, 159,
35 L. ed. 971, 973, 12 Sup. Ct. Rep. 156. The question has arisen in
some of the state courts, and has been so decided. See Ex parte Duckett,
15 S. C. 210, 40 Am. Rep. 694, decided in 1881; Ex parte Espalla, 109
Ala. 92, 19 So. 984, decided in 1896. In such cases the provision of the
sentence that the imprisonment is to commence on or to continue from a
certain day is rendered impossible of performance by the act of the
defendant, and he will not be permitted to obtain an advantage in such
manner. The appellant cites no case which questions this principle.
Those cited by him have, generally, reference to the construction to be
given the language of the sentence as to the time of its commencement.
They do not deny the rule as to the action of defendant in preventing
its execution.
Johnson v. People, 83 Ill. 431, is not in
point. The case arose on error brought by the defendant after conviction
in the court below. He was convicted under several counts of an
indictment for selling intoxicating liquors, and the sentence fixed a
day and hour when the imprisonment should commence under each count.
This was held to be error, as the sentence to imprisonment should have
been for a specified number of days under each count upon which
conviction is had, and the imprisonment under each succeeding count
would begin when it ended under the preceding one, without fixing the
day or hour of any. It appeared in that case that a supersedeas had been
granted, and that it had become impossible that the judgment of
imprisonment could be carried into effect, as the time fixed by the
court had elapsed. The sentence was held to be an erroneous one, and the
judgment was reversed and the case remanded, with directions that the
court should enter a proper judgment on the verdict.
In Dolan's Case, 101 Mass. 219, the prisoner,
after imprisonment, had escaped before the term of the sentence had
expired, and, having been retaken, claimed his discharge at the
expiration of the time that he would have been entitled to it if he had
not escaped. Neither the date of its commencement nor of its expiration
was fixed by the terms of the sentence. His application was denied, and
it was held that the defendant must be imprisoned for a time which
corresponded with his original sentence, and that the expiration of the
time without imprisonment was in no sense an execution of the sentence.
Also in State v. Cockerham, 24 N. C. (2 Ired.
L.) 204, it was held that the time at which the sentence should be
carried into execution forms no part of the judgment. The judgment is
the penalty of the law, as declared by the court, while the direction
with respect to the time of carrying it into effect is in the nature of
an award of execution. So here, in the case before us, the material part
of the sentence is imprisonment for two years in the state prison, and
that sentence is not satisfied by a detention in the county jail for a
portion of the two years by reason of the proceedings of appellant to
review the judgment under which the sentence was given.
As to the time of the commencement of the
sentence, State v. Gaskins, 65 N. C. 320, is based upon a statute which
declared that the term of imprisonment 'shall begin to run upon, and
shall include, the day of conviction.' The question did not arise by
reason of the act of the defendant in taking proceedings to review the
judgment.
Woodward v. Murdock, 124 Ind. 439, 24 N. E.
1047, simply holds that the period the prisoner is out of jail under
parole is part of the time for which he was sentenced, and when the
original time expires he is entitled to his discharge just the same as
if he had been in prison the whole time. It was held that he was
constructively in prison, although in fact conditionally at large under
his parole, and that while thus on parole his sentence ran on.
The sentence given in this case could only
have been satisfied by imprisonment in the state prison at San Quentin
for the period of time mentioned in the sentence. This is not the case
of an arbitrary detention in jail, without excuse or justification,
after sentence to imprisonment in a state prison. If in such case the
defendant were helpless, the question might arise whether the time of
such improper detention in jail should not be counted, as to that
extent, a satisfaction of the sentence.
It is also objected that the sentence is void
because it directs imprisonment in the state prison for a period that
does not exceed one year on each count of the indictment; and Re Mills,
135 U. S. 263-268, 34 L. ed. 107-110, 10 Sup. Ct. Rep. 762, is cited to sustain the proposition.
In that case the prisoner was sentenced upon
two indictments to imprisonment in the penitentiary,—in one case for a
year and in the other for six months; and it was held that the
imprisonment was in violation of the statutes of the United States. See
Rev. Stat. §§ 5541, 5546, 5547 (U. S. Comp. Stat. 1901, pp. 3721, 3723,
3724).
In the case at bar the sentence was for two
years upon one indictment, and there is no statement in the record that
there was a separate sentence each for one year upon the first and
fourth counts of the indictment. In this we think there was no violation
of the statute, and the sentence was therefore proper and legal. The
appellant may have been sentenced upon one count only for two years.
Although for some purposes the different counts in an indictment may be
regarded as so far separate as to be in effect two different
indictments, yet it is not true necessarily and in all cases. But this
record shows a sentence for two years to the state prison, and there is
nothing to show the court was without jurisdiction to impose such
sentence for the crime of which the defendant was convicted.
It is also objected that the facts charged in
either the first or fourth count of the indictment did not constitute
any offense under the statute, and that the sentence was therefore
without jurisdiction. We are not by any means prepared to adjudge that
the indictment did not properly charge an offense in both the first and
fourth counts. See Dimmick v. United States, 54 C. C. A. 329, 116 Fed.
825, involving this indictment, where it is set forth. It is not,
however, necessary in this case to decide the point, for the indictment
charged enough to show the general character of the crime, and that it
was within the jurisdiction of the court to try and to punish for the
offense sought to be set forth in the indictment. If it erroneously held
that the indictment was sufficient to charge the offense, the decision
was within the jurisdiction of the court to make, and could not be
re-examined on habeas corpus. The writ cannot be made to do the office
of a writ of error. Even though there were, thewrefore, a lack of
technical precision in the indictment in failing to charge with
sufficient certainty and fulness some particular fact, the holding by
the trial court that the indictment was sufficient would be simply an
error of law, and not one which could be re-examined on habeas corpus.
Ex parte Parks,
93 U. S. 18, 23 L. ed. 787; Re Coy,
127 U. S. 731, 32 L. ed. 274, 8 Sup. Ct. Rep. 1263; Re $Eckart,
166 U. S. 481, 41 L. ed. 1085, 17 Sup. Ct. Rep. 638. In the last case it was stated that (page 483, L. ed. p. 1086, Sup. Ct. Rep. p. 638):
'The case is analogous in principle to that of
a trial and conviction upon an indictment, the facts averred in which
are asserted to be insufficient to constitute an offense against the
statute claimed to have been violated. In this class of cases it has
been held that a trial court possessing general jurisdiction of the
class of offenses within which is embraced the crime sought to be set
forth in the indictment is possessed of authority to determine the
sufficiency of an indictment, and that, in adjudging it to be valid and
sufficient, acts within its jurisdiction, and a conviction and judgment
thereunder cannot be questioned on habeas corpus, because of a lack of
certainty or other defect in the statement in the indictment of the
facts averred to constitute a crime.'
The order refusing the writ was right, and is affirmed.
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