ON SUGGESTION FOR REHEARING EN BANC
Decided Without Oral Argument
MacKINNON, Circuit Judge,(Statement in support of his suggestion for rehearing en banc):
Following Frady’s conviction of first degree murder and robbery the trial judge sentenced him on December 6, 1963 “to the punishment of death by electrocution” on the first degree murder count and to imprisonment for five to fifteen years on the robbery count. Tr., December 6, 1963, 5. The judgment of the court set the “7th day of February A.D. 1964” as the date for electrocution. The nature of the sentences did not call for adjudging the sentences to be concurrent or consecutive and no such specification was added. On December 13th the trial judge ordered a stay of the “sentence of death” in the event that an appeal be taken from the judgments of conviction.
Frady appealed and the Court of Appeals en banc (1) affirmed the robbery conviction unanimously, (2) affirmed the first degree murder conviction with one Judge dissenting, and (3) decided that the death penalty had been erroneously imposed and ordered resentencing to life imprisonment on the murder count. Frady v. United States, 121 U.S.App.D.C. 78, 348 F.2d 84 (D.C.Cir.) (en banc), cert. denied 382 U.S. 909, 86 S.Ct. 247, 15 L.Ed.2d 160 (1965).
On June 18, 1965, pursuant to the remand, the District Court sentenced appellant to imprisonment for “life” on the first degree murder count, and then added that the sentence of five (5) years to fifteen (15) years on count three (robbery), imposed on December 6, 1963, was “to run consecutively to the pife] sentence imposed under count 1 [first degree murder].” 1
*390While Frady’s counsel immediately questioned the “consecutive” sentence2 it was not until June 19, 1978 that Frady filed a motion to vacate the allegedly illegal sentence. After initially making another contention, which was denied, the appellant eventually alleged that the sentencing court had acted illegally on June 18, 1965 when it adjudged that the five to fifteen year sentence on the robbery count should run consecutively to the life sentence which the court had just imposed pursuant to the remand following the appeal.
The majority opinion now concludes that making the sentence on the robbery count run consecutively to the life sentence for murder amounted to a “violation of the Double Jeopardy Clause.”3 It reaches this conclusion by assuming that the court in 1965 when it imposed the life sentence “altered” the “sentence for the robbery [as] originally entered,” (Maj. op. at - of 197 U.S.App.D.C., 386 of 607 F.2d) because “as imposed in 1963 the robbery sentence was concurrent.” Maj. op. at - of 197 U.S.App.D.C., n.7, 386 n.7, of 607 F.2d n.7. The majority opinion claims its conclusion is supported by cases holding that “ ‘absent a specification of consecutiveness, multiple sentences operated concurrently,’.” Borum v. U. S., 133 U.S.App.D.C. 147, 409 F.2d 433, 440 (D.C.Cir.1967), cert. denied, 395 U.S. 916, 89 S.Ct. 1765, 23 L.Ed.2d 230 (1969), quoted at Maj. op., at - of 197 U.S.App.D.C., 386 of 607 F.2d. “If the sequence [of sentences] is not adequately specified, the sentences must be deemed to run concurrently.” Henley v. Heritage, 337 F.2d 847, 848 (5th Cir. 1964); cf., U. S. v. Daugherty, 269 U.S. 360, 363, 46 S.Ct. 348, 70 L.Ed.2d 310 (1926). This was the decisional law with respect to multiple prison terms before Congress in 1970 reversed the presumption by providing that multiple sentences in the District of Columbia shall run consecutively “unless the court imposing such sentence expressly provides otherwise . .”4 The cases relied upon, however, all involved multiple sentences to different terms of years, and none involved cases where a defendant was sentenced to a term of years and to a death sentence. It thus cannot be said here that there was an inadequate specification because when a death sentence is imposed with a prison sentence the question of consecutiveness or concurrence does not arise. In the circumstances that are here present, as the sentencing judge remarked in 1965, when the sentences were imposed, it would have been “a stupid thing to do” in 1963 “when I originally sentenced them under the robbery count. . . . ”5 The sentencing judge was correct — it would have been senseless when adjudging a death sentence to add that the 5 to 15 year term of imprisonment would run “consecutively to the death sentence.” The reason it would have been stupid is because a death sentence does not run for any period of time. The *391very nature of a sentence to death does not call into play a situation which would suggest a necessity for any court to designate whether the prison term should be consecutive or concurrent. Once the death sentence is carried out the service of any prison term would be impossible. It was not until the life sentence was adjudged to replace the death sentence, involving as it did some time considerations for possible parole, etc., that the consecutive or concurrent nature of the sentence first became a sentencing problem. At that time the Court adjudged that the 5 to 15 year prison term was to run consecutively to the life term.
The effect was to make the two sentences consecutive. While the mechanism the Court employed made the 5 to 15 year term consecutive to the life sentence, it would not have created any different situation, or altered Frady’s rights in any respect, had the Court stated that the life sentence was to run consecutively to the 5 to 15 year term. The effect of what the Court stated was that the life term must be served first as a separate sentence. Whether one precedes the other, or vice versa, is immaterial. Goode v. Markley, Warden, 195 U.S.App.D.C. 391, 394-395, 603 F.2d 973, 976-977 (1979) (“The U.S. Parole Commission . . . aggregate^] consecutive sentences for the purpose of determining parole eligibility”). Actually the life sentence was partially consecutive to the prison term, because the prison term was the only sentence involving time that existed between December 6, 1963, when the death sentence and the prison term were first adjudged, and June 18, 1965, when the life term was imposed and the consecutive nature of the prison term was added. The majority are thus straining as gnats in making out a double jeopardy violation on the facts here present.
The prior cases relied upon are also not in point because they all involved multiple sentences to terms of years in which it would be valid to presume that something had been omitted in that a sentencing judge would normally specify the relationship of the two sentences. However, the factual situation which exists when a prison term is adjudged in connection with a death sentence creates a different factual situation. Nothing is there omitted when the sentences are not termed consecutive or concurrent because in such circumstances no one would expect the Court to adjudge the prison term to be consecutive. And since nothing was omitted from the sentence the factual situation does not create an opportunity for the presumption of concurrence to operate. If the factual situation would sustain any presumption it would be a presumption of consecutive sentences because by imposing a death sentence and up to the maximum prison term that the statute allowed (31 Stat. 1322), the Court was indicating it wanted the defendant to suffer the maximum possible punishment — and that would be consecutive sentences if that ever became possible with one sentence being a death sentence. It was thus erroneous for the majority to hold that the presumption of concurrent sentences applied to the 1963 sentences.
Moreover, the very nature of the two sentences implicitly indicate that they were consecutive sentences. The time that Frady served in custody after the sentences were imposed was immediately charged to his robbery sentence because it was the only prison term that he was serving, and if his appeal took 5 years he would have served the minimum amount adjudged. If he was then executed, the sentences would have operated consecutively and the same would be true if his murder conviction was commuted after five years. The basic assumption of the majority opinion, of original concurrent sentences, is thus in error — on the facts and on the law. The original sentences created absolutely no situation within which the presumption would operate.
For the reasons hereinbefore set forth, I vote sua sponte to rehear the case en banc.
. “MR. JOHNSON: I might suggest to Your Honor, I think Your Honor made one error in the sentencing. I think Your Honor gave them a life sentence and then resentenced them under the robbery count. I don’t think Your Honor has the authority to resentence them under the robbery count.
THE COURT: Well, I had already sentenced them under the robbery count.
MR. JOHNSON: Yes, sir.
THE COURT: Now, it is true that when I originally sentenced them under the robbery count, I did not provide that it was consecutive.
MR. JOHNSON: Yes, sir.
THE COURT: But it would seem to me a stupid thing to do a useless . . thing to do to add a five to fifteen year penalty consecutive to the death penalty.
MR. JOHNSON: Yes, sir.
THE COURT: Only a higher diety — or a high deity could carry out that sentence, and I have thought about this matter. Therefore I do not now deem the consecutive sentence on robbery to be an improper or illegal sentence.”
Tr. June 18, 1965, 10.
. “[N]or shall any person be subject for the same offense to be twice put in jeopardy or life or limb . . ” Fifth Amendment, U.S. Constitution.
. P.L. No. 91-358 of July 29, 1970, § 210(a), Title II, 84 Stat. 610; 23 D.C.Code § 112.
. Tr. June 18, 1965, 10, quoted at n.2, supra.