70 F.2d 840 - De Maggio v. Coxe — 70 F.2d 840

How this case has been cited

Cited by 27 later decisions — most recently October 2004 · most notably Rowley v. Welch (1940), United States v. Rosa (1974)

18 federal appellate · 2 district · 2 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1Before MANTON, SWAN, and CHASE, Circuit Judges.

¶2PER CURIAM.

¶3On this application the defendant urges that the District Judge lacked jurisdiction to impose upon him a second and increased sentence contrary to his constitutional rights. He was charged with a violation of the Narcotic Act- and pleaded guilty, and on October 3, 1933, was sentenced. He was removed from the courtroom to the detention room adjoining, recalled to the courtroom, and thereupon the judge sentenced him and changed his sentence to two and a half years’ imprisonment. He is now imprisoned and detained under that sentence.

¶4He had not been taken to a place of detention where he would commence service of his sentence when the alleged illegal sentence was imposed. Had he entered upon serving his first sentence, it could not have been increased (United States v. Benz, 282 U. S. 304, 51 S. Ct. 113, 75 L. Ed. 354) but could have been modified within the term by changing the place of imprisonment. Wall v. Aderhold, 51 F.(2d) 714 (D. C. Ga.). But, while awaiting removal to jail, he had not begun to serve his sentence. 18 USCA § 709 (a).

¶5The application for leave to file a writ of mandamus in forma pauperis is denied.