The opinion of the court was delivered by: MORRIS
These defendants were indicted on February 1, 1933, charged with robbery, alleged to have been committed in the District of Columbia on June 10, 1932. The defendant Foley was arraigned June 19, 1939, and defendants Neufield, Flynn and Rubin September 21, 1939. The long lapse of time between indictment and arraignment is accounted for by the incarceration of the defendants in a penal institution in the State of New York for other offenses committed in that jurisdiction. The defendants were jointly tried, a justice of this Court now retired presiding, and on November 17, 1939, they were found guilty as indicted. Several motions on behalf of the defendants were made and denied, and on December 15, 1939, each of the defendants was sentenced to imprisonment in the penitentiary for a term of from three to fifteen years. An appeal was taken to the United States Court of Appeals and the judgment of this Court was affirmed. The defendants are now serving the sentences imposed.
It is the contention, and in this I think the defendants are correct, that the sentence imposed was pursuant to the Act of Congress providing for the imposition of indeterminate sentences in the District of Columbia, which, in so far as it is relevant here, is quoted in the margin.
That Act contained a section which provided that, for any felony committed before July 15, 1932, the penalty, sentence or forfeiture provided by law for such felony at the time such felony was committed shall remain in full force and effect and shall be imposed.
It should also be noted that prior to the passage of the Act of July 15, 1932, just mentioned, under the law applicable to parole, a person convicted of crime in the District of Columbia (as elsewhere in the Federal jurisdiction), serving a sentence of more than one year, if such person's record of conduct showed that he had observed the rules of the institution in which he was confined, could be released on parole by the parole authority after having served one-third of the total of the term for which he was sentenced.
At the time of the commission of the offense here being considered such authority was vested in the Federal Board of Parole.
By the Act of July 15, 1932, there was established in the District of Columbia a Board of Indeterminate Sentence and Parole for the penal institutions for said District.
To this Board was transferred all powers of the Federal Parole Board existing on July 15, 1932, over prisoners confined in the penal institutions of the District of Columbia, and it was expressly provided that in the case of a prisoner convicted of felony committed prior to July 15, 1932, the Board of Indeterminate Sentence and Parole may parole said prisoner after said prisoner had served one-fifth of the sentence imposed. /7
It has been definitely held by our Court of Appeals that 'an indeterminate sentence is one for the maximum period imposed by the court, subject to termination by the Parole Board at any time after service of the minimum period.' Story v. Rives, 68 App.D.C. 325, 97 F.2d 182, 187. Quoting from United States ex rel. Paladino v. Commissioner, 2 Cir., 43 F.2d 821, the Court stated: 'Indeterminate sentences have long been held sentences for the maximum term for which the defendant might be imprisoned. * * * (Citing numerous authorities.)'
From the foregoing, it seems clear that, not only is the maximum sentence imposed on each of the defendants in the present case one which was clearly authorized by the law applicable at the time of the commission of the offense for which he was sentenced, but also that the minimum sentence imposed by the court, being one-fifth of the maximum sentence imposed, was the period he would be required to serve before he could be released on parole, even though he had been given a straight sentence of fifteen years and no minimum sentence had been articulated. See note 7,
supra. Since, then, the sentences imposed were in no way in excess of that authorized by law, I fail to see how such sentences can be said to be void. The defendants rely upon the authority of De Benque v. United States, 66 App.D.C. 36, 85 F.2d 202, 106 A.L.R. 839, and the Government concedes that, if that case controls, the sentences here should be set aside as void. In that case it was held that in a criminal case, in the Federal courts, a sentence not imposed in strict accordance with the penalty statute is void. There, as here, an indeterminate sentence was imposed when the law applicable at the time the offense was committed required a straight sentence. In that case this Court (then the Supreme Court of the District of Columbia) set aside the indeterminate sentence as void and imposed a straight sentence for such term as would make the total confinement substantially the same, but somewhat less than, the defendant would have been required to serve under the maximum of the indeterminate sentence imposed. The Court of Appeals affirmed the imposition of the straight sentence. I could not, of course, rule contrary to the principles accepted in that case, if it were clear that its authority is unimpaired. However, in the case of Jones v. United States, App. D.C., 151 F.2d 289, decided subsequent to the hearing on the motion being considered, the Court adhered to the principle laid down by the Supreme Court in United States v. Pridgeon, 153 U.S. 48, 14 S. Ct. 746, 751, 38 L. Ed. 631: 'Without undertaking to review the authorities in this and other courts, we think the principle is established that, where a court has jurisdiction of the person and of the offense, the imposition of a sentence in excess of what the law permits does not render the legal or authorized portion of the sentence void, but only leaves such portion of the sentence as may be in excess open to question and attack. In other words, the sound rule is that a sentence is legal so far as it is within the provisions of law and the jurisdiction of the court over the person and offense, and only void as to the excess, when such excess is separable, and may be dealt with without disturbing the valid portion of the sentence.'
Under that authority, this Court clearly having jurisdiction of the person of each defendant and of the offense, and the sentences imposed being not in excess of that authorized by law, such sentences should not be disturbed.
It was asserted in argument at the hearing of this motion that much has come to light which would show that these defendants are innocent of the crime for which they are now serving sentence. These are matters which should be considered by appropriate authorities, certainly not in the determination of this motion.