(dissenting).
Appellant pled guilty to three separate indictments for housebreaking. In open court the sentences were imposed as follows:
“You may serve one to three years on each case, the sentences to run consecutively.”
The consecutive order of the sentences was not stated.1 Moreover, the three cases were not referred to separately; the sentencing was lumped as stated above.
The Judgments and Commitments signed by the Judge in compliance with Rule 32(b), Fed.R.Crim.P., provided that the sentences should run concurrently. This rule reads as follows:
“(b) Judgment. A judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence. * * * The judgment shall be signed by the judge and entered by the clerk.”
Form 25 accompanying the Rules spells out a method of complying with Rule *49832(b) and reads as set forth in the margin.2 This form was used in these cases, so that the sentences appear in the Judgments and Commitments as follows:
In No. 438-54:
“It Is Adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of 4
“One (1) to Three (3) years.”
In No. 439-54:
“It Is Adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of 4
“One (1) year to three (3) years said sentence to run concurrently with the sentence imposed in Criminal Case No. 438-54.” (Italics supplied.)
In No. 440-54:
“It Is Adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of 4
“One (1) year to Three (3) years said sentence to run concurrently with the sentence imposed in Criminal Case No. 439-54.” (Italics supplied.)
The opinion of the court refers to the Judgments and Commitments as the “commitment papers.” I think they are not merely so. They are also judgments which under Rule 32(b) “set forth the * * * sentence.”
After fully serving the period of concurrent terms Kennedy was at liberty on December 19, 1956. He could not be deprived of this liberty without due process of law. U.S.Const. Amend. V. He was arrested January 4,1957, on a bench warrant and reimprisoned after the Judgments and Commitments in Nos. 439-54 and 440-54 had been changed by the sentencing Judge on December 20, 1956, to describe the sentences as consecutive. These changes were made without notice to Kennedy or opportunity to him to be heard. From this it follows that he was deprived of his liberty without due process of law. Montgomery v. United States, 8 Cir., 134 F.2d 1. And see Pollard v. United States, 352 U.S. 354, 360, 77 S.Ct. 481, 1 L.Ed. 2d 393, and Downey v. United States, 67 App.D.C. 192, 196, 91 F.2d 223, 227, where it is said:
*499“Proceedings in the absence of the appellant to correct the record would have been improper, since the ultimate question involved, the extent of valid imprisonment to which he might be subjected, was one of vital interest to him.”
Accordingly, he should be released from detention unless and until he is validly deprived of his liberty.
To apply Rule 36, Fed.R.Crim.P.,3 relied upon by the United States, so as to authorize these ex parte “correction” proceedings and consequent deprivation of liberty without notice and an opportunity to be heard would be plainly unconstitutional.
The court’s opinion states that appellant was released after completion of the sentence imposed on the first indictment, but, because of the clerk’s error in the preparation of the commitment, failed to serve the sentence pronounced upon each of the other indictments. I think this is an oversimplification and somewhat begs the question. In United States v. Patterson, C.C., 29 F. 775, Mr. Justice Bradley of the Supreme Court, sitting in Circuit, considered a case in some respects similar. The accused had pled guilty to three indictments for three separate offenses, as had the present appellant. He was sentenced “for the term of five (5) years upon each of the three indictments * * * said terms not to run concurrently * * 4 He served one term of five years, was continued in detention, and sought release through habeas corpus proceedings. Describing the questioned language of the sentences as equivalent to “the said terms shall follow each other successively,” 5 Mr. Justice Bradley nevertheless held the sentences to be for a total of only five years because the language referred to was “incapable of application to the respective terms, without specifying the order of their succession * * 6 The Justice explained:
“[I]f they are successive, which one? That which is first to be executed, or that which is secondly or thirdly to be executed? No intelligence is sufficient to answer the question. A prisoner is entitled to know under what sentence he is imprisoned. The vague words in question furnish no means of knowing. They must be regarded as without effect, and as insufficient to alter the legal rule that each sentence is to commence at once, unless otherwise specially ordered.
* » * * íf *
“* * * [A] s neither of them was made to take effect after the one or the others, they all took effect alike; that is, from the time of the rendering of judgment * * * ”
Agreeing that a court has a right “to extend its judgment and proceedings on the record in proper form, regardless of imperfections in the minutes of its clerk,” the Justice went on to say that in the case before him,
“there are no materials in existence for altering the form of the judgment under consideration, — at least nothing but what may rest in the bosom of the judge; and for him to resort to his memory at this day to alter the judgment would be to render a new judgment.” 7
United States v. Daugherty, 269 U.S. 360, 46 S.Ct. 156, 70 L.Ed. 309, involved *500sentences on three counts of the same indictment for five years on each count, to be consecutive and not concurrent. The Supreme Court implied the order of consecutiveness, saying:
“[T]he judgment here questioned was sufficient to impose total imprisonment for 15 years, made up of three 5-year terms, one under the first count, one under the second and one under the third, to be served consecutively and to follow each other in the same sequence as the counts appeared in the indictment. This is the reasonable and natural implication from the whole entry.” 8
The Court distinguished Patterson on the ground that in Patterson the sentences grew out of “three separate indictments," saying, “the question there was materially different from the one here presented, which concerns counts in one indictment.”9 [Italics in original.]
It seems to me, therefore, that under Patterson, thus distinguished but not disapproved, the sentences pronounced in open court in the present cases as “consecutive,” without more, were satisfied when one of the specified terms had been served. I now assume that the “concurrent” language of the Judgments and Commitments, though these were signed by the Judge, was due to a mistake. Yet the mistaken language, once the Judgments and Commitments had been satisfied by prison confinement in accordance with their terms, was a true reflection of the legal situation.10 Thereafter the imprisonment could not be increased. The authorities are uniform in holding that a valid sentence once served, or even begun to be served, cannot be augmented. This is so because of the constitutional provision against double jeopardy. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354; Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872; United States v. Rosenstreich, 2 Cir., 204 F.2d 321; King v. United States, 69 App.D.C. 10, 98 F.2d 291. See, also, Rowley v. Welch, 72 App.D.C. 351, 354, 114 F.2d 499, 502, and Clark v. Memolo, 85 U.S.App.D.C. 65, 174 F.2d 978. And see Bozza v. United States, 330 U.S. 160, 167, note 2, 67 S.Ct. 645, 91 L.Ed. 818. It seems to me altogether unrealistic to say that appellant’s sentence was not augmented but only made to conform on the record to what it was.
If the distinction of Patterson drawn by the Supreme Court in Daugherty is not thought to be altogether persuasive— or if it is thought that Patterson is too technical — there are factors of substance here, not present in Patterson, which do persuade that the result reached in Patterson should be reached here. The formal Judgments and Commitments in the present cases actually read “concurrent” and were so signed by the Judge as required by Rule 32(b). The concurrent terms, which thus prima facie state the sentences,11 were fully served and appellant was actually at liberty. This was not the situation either in Patterson, in Daugherty, or in any case relied upon by the court in its present opinion, with the possible exception of Watkins v. Merry, 10 Cir., 106 F.2d 360.12 I *501think the court had lost jurisdiction13 over appellant’s imprisonment. Jurisdiction in the court to correct its records would not in the present circumstances extend to jurisdiction over the liberty of the individual affected by the mistake after he had adjusted his life to accord with the terms of the formal Judgments and Commitments and had been given his freedom.
The opinion of the court is concerned to a large degree with demonstrating the undisputed fact that in imposing sentence in open court the Judge meant the sentences to be consecutive. There is, however, also no doubt that the order of consecutiveness was not stated, and that when the Judge signed the formal papers the sentences were set forth therein as “concurrent.” There is an •entire omission of anything in the record as to whether the Judge read the papers. If they were read he accepted the change from “consecutive” to “concurrent.” If they were not read I think the error cannot be corrected without notice or opportunity to be heard accorded to the one vitally affected by the changes. A Judge, though in the utmost good faith, might not carry in mind for years the details of all he thought •or did in the consideration or signing •of particular papers. If he read and accepted these as written their content should govern, regardless of what he had previously said in open court. If he did not read the papers the mistake — and mistakes cannot always be avoided — was not one within his discretion to correct under Rule 36 — without notice. Indeed, in Downey v. United States, supra, where, as in Patterson, the truth in part lay in his mind it is said that the sentencing judge should not conduct the correction hearing, but be heard as a witness. Be that as it may, a hearing was essential, and is not supplied after eso parte changes have been made and the prisoner himself has instituted habeas corpus proceedings to attack those which made his imprisonment illegal.
. The cases were numbered 438-54, 439-54, 440-54. The jacket entry on 439-54 has a notation, “consec. with 438-54,” and the jacket of 440-54 has a notation “conseq. with 439-54,” but the informal notes, presumably of the clerk or his representative, appearing on the back cover of the jackets in Nos. 439-54 and 440-54, read simply “1 to 3 consec.,” without stating the order of consecutiveness.
. Form 25, Fed.Rules Crim.Proc. Appendix of Forms, 18 U.S.C.A.:
“Judgment and Commitment “On this ......day of ............. 19..., came the attorney for the government and the defendant appeared in person and 1 ........................... “It is Adjudged that the defendant has been convicted upon his plea of 2 ...........of the offense of........... as charged 2 ...............; and the court having asked the defendant whether he has anything to say why judgment should not be pronounced, and no sufficient cause to the contrary being shown or appearing to the Court, “It is Adjudged that the defendant is guilty as charged and convicted. “It is Adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of 4 ..................................
1. “Insert ‘by counsel’ or ‘without counsel; the court advised the defendant of his right to counsel and asked him whether he desired to have counsel appointed by the court, and the defendant thereupon stated that he waived the right to the assistance of counsel.’
2. “Insert (1) ‘guilty,’ (2) ‘not guilty, and a verdict of guilty,’ (3) ‘not guilty, and a finding of guilty,’ or (4) ‘nolo contendere,' as the case may be.
2. “Insert‘in count (s) number ....’if required.
i. “Enter (1) sentence or sentences, specifying counts if any; (2) whether sentences are to run concurrently or consecutively and, if consecutively, when each term is to begin with reference to termination of preceding term or to any other outstanding or unserved sentence; (3) whether defendant is to be further imprisoned until payment of fine or fine and costs, or until he is otherwise discharged as provided by law.”
. Rule 36, Fed.R.Crim.P.:
“Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.”
. 29 F. at page 776.
. Id., at page 778.
. Ibid.
. Id., at pages 778-779. None of the “materials” available in the present case bear upon the order of consecutiveness which might have been in the mind of the Judge or upon whether or not the Judge read and accepted the content of the formal papers he signed.
. 269 U.S. at page 863, 46 S.Ct. at page 157.
. Ibid. The Court continued, “This and similar unfortunate causes should admonish the trial courts to require the use of meticulously precise language in all judgment entries. Especial care is essential where sentences for crime are imposed.” Id., 269 U.S. at page 364, 46 S.Ct. at page 157.
. But see Selzenvich v. Sigler, 5 Cir., 228 F.2d 615.
. United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290.
. In Watkins v. Merry the accused had served the 11 months for which he was committed to prison. The commitment papers did not refer to the additional 4 years and 1 month of probationary period, which had not expired.
. See State v. McBee, 10 Kan.App. 450, 61 P. 1093.