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DE BARA

decided: December 3, 1900.

IN RE DE BARA, PETITIONER.


ORIGINAL.

Author: Mckenna

[ 179 U.S. Page 316]

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 section 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:

"Came the parties by their attorneys and the defendant in his own proper person in the custody of the marshal to have the sentence and the judgment of the court pronounced upon him, he having heretofore, to wit, on the 5th day of June, 1899,

[ 179 U.S. Page 317]

     one of the days of this term of court, been found guilty by a jury in due form 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 reason why sentence and judgment should not be pronounced, it is therefore considered by the court and as the sentence and the judgment of the court upon the verdict of guilty so rendered by the jury as aforesaid, that the defendant Edgar De Bara be confined and imprisoned in the House of Correction at Detroit, Michigan, for and during the term of three years."

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 offence committed by him, there were filed against him numerous indictments, all of which charged in a different way the same offence, and all were for violating section 5480.

That the record shows that the petitioner was convicted of the offence 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 offence 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 sttached to the petition.

In his return to the rule the Superintendent of the Detroit

[ 179 U.S. Page 318]

     House of Correction justified the detention of the petitioner by the judgment and sentence of ...


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