1

expired, but 1 year and three months had not thereafter elapsed. The District Judge held that the sentences ran concurrently, and that the applicant was entitled to his release.

[1] After the receipt of the California commitment, the warden, already in custody of the prisoner, held him under both commitments. The time of the sentence having elapsed between the receipt of the commitment and the date of the application for the writ of habeas corpus, the only conclusion to be reached by the trial court was that the applicant had served the term. The marshal, in sending the commitment, had stated that "the punishment was to become effective upon completion of his present term." There is nothing in the commitment which indicates a time for the beginning of the punishment, other than that the marshal was to forthwith deliver Lyman into the custody of the warden at Atlanta. This commitment was the measure of the authority of the warden, and was properly the basis of the action of the District Judge upon the application for habeas corpus. The marshal had no authority to change the terms of the commitment, or determine when the punishment should begin.

It is argued that it was manifest that the California court intended that the punishment should begin after the expiration of the term imposed by the New York court. This nowhere appears. It is true that, if the original order of imprisonment in the state penitentiary at San Quentin had not been changed, the imprisonment could not have begun. until the prisoner had been released from the Atlanta penitentiary. But there is nothing to indicate that the court intended to do anything other than that which was done.

[2] It could well be assumed that the court intended, if it can be assumed that it had knowledge of the pendency of another sentence, that the ordinary effect should follow. Ordinarily, two or more sentences run concurrently, in the absence of specific provisions in the judgment to the contrary. United States v. Patterson (C. C.) 29 Fed. 775; In re Breton, 93 Me. 39, 44 Atl. 125, 74 Am. St. Rep. 335; 1 Bishop, Crim. Procedure, 1327, 1310. This rule seems to apply where the conviction is had in different courts. Ex parte Green, 86 Cal. 427, 25 Pac. 21; Ex parte Black, 162 N. C. 457, 78 S. E. 273; Ex parte Gafford, 25 Nev. 101, 57 Pac. 484, 83 Am. St. Rep. 568. The case cited by appellant of Hightower v. Hollis, 121 Ga. 160, 48 S. E. 969, if not distinguishable by reason of the nature of the punishment, is apparently in conflict with the weight of authority.

It is suggested that if the Attorney General had not designated the Atlanta penitentiary as the place of confinement, and the District Court for the Southern District of California had caused a commit-. ment to issue upon the original order, the appellee would have been compelled to serve both sentences fully. If the commitment had been different, and the facts different, doubtless a different conclusion would be reached. That which the court is called upon to do is to pass upon the record as it stands. The California court either knew that Lyman was in the custody of the warden of the Atlanta penitentiary, or did not know of that fact. If it had knowledge of the fact, the commitment which it caused to be issued would evidence an intention that

the sentences should run concurrently. If it had no knowledge of that fact, there could have been no intention other than that its sentence should begin forthwith, as directed by the commitment.

The appellant suggests that error was committed in not permitting the California court to amend its judgment. The record contains nothing to indicate that the trial court had any desire to make any amendment, or that it in any sense recognized or assumed that any error had been committed.

The applicant has not, as suggested by the appellant, escaped punishment because of the technical error. There is nothing to indicate that an error has been committed, and the record shows that the prisoner was held under the sentence for the period designated by the judgment.

The judgment of the lower court is affirmed.

WALKER, Circuit Judge (dissenting). It is quite apparent that the above-mentioned commitment order made by the District Court for the Southern District of California was not intended to change in any respect its previously rendered and affirmed judgment. In specifying the place of imprisonment, there was a compliance with the direction of the Attorney General. The extent of the authority conferred on the Attorney General by the statute under which he acted (10 U. S. Comp. St. Ann. § 10547) is to have the place of imprisonment changed. He is not empowered to make the period of imprisonment different from what it would have been if the place of imprisonment designated in the judgment of the court had remained unchanged. His exercise of the power conferred is not to be, given the effect of accomplishing an unauthorized result. There is nothing to indicate that the above-mentioned letter of the Attorney General, or the commitment order made in pursuance of it, purported or was intended to have the effect given to it by the order appealed from. If the change of the place of confinement of the convict had not been so made, his confinement in the San Quentin penitentiary could not have commenced until he was released from confinement in the Atlanta penitentiary under the New York conviction.

Under the facts of the instant case, there is nothing upon which to base the conclusion that the sentence on the conviction in California was imposed under such circumstances as to make it run concurrently with any other sentence. So far as appears, at the time that sentence was imposed, the convict was not the subject of any other sentence, imposed by that or any other court. As above stated, the commitment order made by the California trial court does not purport to make any change in its judgment rendered at a previous term and thereafter affirmed. To give that order, the writ issued under it, and the written statement made by the warden on his receipt of the commitment writ, the effect of making the period of the convict's confinement shorter than it would have been if the place of confinement had not been changed, would amount to making a change in the effect and operation of the affirmed judgment which was not authorized, and which does not appear to have been intended by either the Attorney

General or the court making the order of commitment. It was not in the power of the warden to make an authorized change in the place of imprisonment have the further effect of shortening the period of imprisonment.

Under the circumstances of the issue of the California commitment writ and the receipt of it by the warden, the latter was thereby authorized, upon the expiration of the period of the convict's imprisonment under the New York sentence, to retain him in custody for the period required by the California sentence. The marshal did not execute the writ by arresting Lyman and delivering him to the warden. The convict was already in the warden's custody, held under another unexpired sentence. In the opinion of the writer, what was done did not have the effect of making the convict's confinement in the Atlanta penitentiary under the California sentence commence sooner than it could have commenced if the place of his confinement had not been changed. The application of the conclusion just stated to the facts disclosed leads to the further conclusion that when the writ of habeas corpus was issued, and when the order appealed from was made, the appellee was not entitled to be discharged from custody, because the period of his imprisonment under the California sentence had not expired; and that the court erred in ordering his discharge.

FRICK v. UNITED STATES.

(Circuit Court of Appeals, Ninth Circuit. February 3, 1919.)

No. 3206.

1. PUBLIC LANDS 120-SUIT TO CANCEL PATENT-FRAUDULENT ENTRY. Evidence held to sustain a finding that a patent to public land was obtained by fraud, to which defendant, a subsequent purchaser from the 'patentee, was a party.

2. PUBLIC LANDS

ABLE.

123-PATENTS OBTAINED BY FRAUD-DAMAGES RECOVER

Act March 2, 1896, § 2 (Comp. St. § 4902), limiting recovery from the patentee of land erroneously patented and which has passed to a bona fide purchaser to the minimum government price, does not apply to patents obtained by fraud, and where defendant, who was a party to the fraud, has sold to a bona fide purchaser, the entire amount he received may be recovered.

Appeal from the District Court of the United States for the Second Division of the Northern District of California; Wm. C. Van Fleet, Judge.

De

Suit by the United States against W. P. Frick and another. cree for the United States, and defendant Frick appeals. Affirmed. For opinion below, see 244 Fed. 574.

Jordan & Brann, of San Francisco, Cal., for appellant.

Annette Abbott Adams, U. S. Atty., and Frank M. Silva, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indes es

HUNT, Circuit Judge. The United States brought this suit to cancel a patent for certain land issued in April, 1908, to B. C. Robertson, for forfeiture of certain money paid by Robertson to the United States. and for other proper relief. The land was entered under application by Robertson made in August, 1907, to purchase as timber land, under the act of Congress approved June 3, 1878. The ground of suit is fraud alleged to consist of false representations made by Robertson in the application and affidavit accompanying the same, and by Frick and Robertson in their depositions before the land office in October, 1907, as to the character and condition of the lands.

The particular matters pleaded are: That Frick, who was a witness for Robertson in making final proof, willfully falsely swore that he had personally examined the land, that it was unfit for cultivation and was chiefly valuable for timber, that it was uninhabited and unimproved, that it contained no valuable deposits of mineral, and that there were no mining improvements upon it, whereas, the facts, which were then well known to Frick, were that the lands were more valuable for mineral than for timber; that when Frick bought the land from Robertson there were placer and quartz mining locations made thereon and owned by one Parker, and duly recorded in the office of the county recorder of El Dorado county, Cal., where the lands are situated; that there were veins exposed, and that valuable mining improvements had been made. Frick denied fraud, and pleaded that, since a time prior to the institution of the suit, he had had no interest in the land.

Upon trial it appeared that long before the institution of suit the land had been sold by Frick to the California Door Company, found to be an innocent purchaser for value. The District Court declined to cancel the patent, but rendered judgment against Frick for $6,475.95, or $32.50 per acre, which was the full amount received by Frick for the land when he sold it. Frick appeals.

[1] The principal error assigned is that the evidence was insufficient to sustain the charges of fraud against Frick. Inasmuch as the learned judge of the District Court has carefully and with detailed statement incorporated the most material parts of the evidence in his opinion in the record, there is no necessity for repeating it. The substance of it was that minerals were found upon the land; that there was a cabin upon part of it, and that mining had been done upon portions of the tract for several years; that the country thereabouts was valuable for mineral; that in 1902, and for a number of years thereafter, a Mr. Parker and his wife were living upon the land, and that Parker had built ditches, run a tunnel, and had mined and panned. gold; that about 1902 Frick and another person were mining about two miles away from the ground, and that they, Frick and one Mauk, had talked about Parker having purchased the mine, and the price that they had been told Parker paid for the property. There was also evidence tending to show that Frick was familiar with the property; that he had been upon it, and must have known that there was a house upon it when Parker bought the mine. Mrs. Parker testified to the effect that she had lived upon the Parker mine with her husband; that

they owned the mine after 1906, and had made their living from the mine for about eight years; that they had built ditches, employed men, and worked the property, and at one time had taken out over $340 in gold in two days; that they had a well and a garden and a good cabin.

The testimony of the defendant himself was far from satisfactory. He said that he had been upon the property a year or two before he became a witness upon the final proofs made by Robertson; that he had had some experience in mining in that locality, but that it had not been very profitable; that when he was a proof witness, and testified that there were no improvements on the property, he did not know that there was a house upon it, or that there had been a shaft sunk in the ground, or that Mr. Parker was living there. When asked if he and his mining partner had not at one time loaned a pipe and monitor to Parker to work the mine, witness said:

"We evidently did. If we did, I did not know it went on this property. I was not familiar with it at the time. It was quite a distance."

Again, when asked if he and his partner had not discussed the price that Parker paid for the mine, he said:

"We probably did. That has passed out of my recollection. I did not know that it was on this property."

He further testified that Robertson made his final proof about October 28, 1907, and that he paid Robertson "about $5" an acre for the land about nine or ten days thereafter, but that he did not record the deed until September 29, 1909. In explanation of how he became a witness for Robertson, Frick said:

"As I remember the transaction now, Mr. Robertson asked me if I would not be a witness; that he had found some land that was vacant in El Dorado county, when he was up there fishing. He said he had one witness living in that country. He asked me if I couldn't act as a witness for him, and I said certainly I would. I knew the land when he described it to me that time, because I was familiar in that district. I was very happy to act as a witness for him."

He testified that he knew there had been prospecting in that vicinity, and that he had surveyed the property about 1904, when he had found some abandoned cuts thereabouts, but saw no evidence of any improvements, and that, if he had seen the cabin on the ground, he did not know whether he would pay attention to it, as there were many miners' shacks through that country.

The District Court, after considering all these and other facts and circumstances, was fully satisfied that the allegations of fraud were sustained, and, as the evidence well warrants such a conclusion, the case is to be judged by this court as one where the patent was obtained by fraud on the part of Frick. Cooper v. United States, 220 Fed. 867, 136 C. C. A. 497.

[2] It is said that in no event is the United States entitled to a money judgment against Frick except for that portion of the land which was more valuable for mineral than for timber "at the time of the grant," and that there were only about 20 acres shown to have been