(dissenting).
The judgment first pronounced in the federal court did not fix the time when the sentence was to begin. The commitments commanded the marshal to deliver appellant to the penitentiary “forthwith.”
In Hill v. Wampler, 298 U.S. 460, 465, 56 S.Ct. 760, 762, 80 L.Ed. 1283, it is said: “The prisoner is detained, not by virtue of the warrant of commitment, but on account of the judgment and sentence.” Inasmuch as the judgment did not fix the time when the sentence was to begin to run, it is necessary to determine when the sentence, began under the first indictment.
18 U.S.C.A. § 709a, enacted June 29, 1932, provides: “The sentence of imprisonment of any person convicted of a crime in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence: Provided, That if any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, the sentence of such person shall commence to run from the date on which he is received at such jail or other place of detention. No sentence shall prescribe any other method of computing the term.”
It is quite clear that appellant does not come within the proviso, for he was committed to the marshal not “to await transportation,” but to be transported forthwith. Therefore, under that statute appellant’s *263term began to run when he was received by appellee at the government penitentiary.
The ex post facto clause in the Constitution “forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer.” Lindsey v. State of Washington, 57 S.Ct. 797, 799, 81 L.Ed. -, decided by the Supreme Court of the United States May 17, 1937. If, prior to the passage of 18 U.S.C.A. § 709a, the law was that the term, under such circumstances as here, began to run on the day of sentence, the above statute could not be applied because appellant’s position would be altered. On the other hand, if, prior to the passage of the statute, the law was the same as what is provided in the statute, then such statute is controlling and the order should be affirmed.
In Eori v. Aderhold (C.C.A.5) 53 F.(2d) 840, 841, it is said that the sentence begins to run on the day the prisoner is delivered into the custody of the officer at the prison where the sentence is to be served. Hynes v. United States (C.C.A.7) 35 F.(2d) 734, 735, is a like holding. This is the general rule as stated in 16 C.J. 1372, § 3228. However, in Eyler v. Aderhold (C.C.A.5) 73 F.(2d) 372, 373, the rule in Eori v. Aderhold, supra, was modified, the court saying: “It has always been the rule, in the absence of statute, that if the commitment is silent as to the date the sentence shall begin to run it will commence with the date of delivery to the designated jail.”
This was followed in Edwards v. Aderhold (C.C.A.5) 73 F.(2d) 374, certiorari denied 294 U.S. 725, 55 S.Ct. 640, 79 L.Ed. 1256. I believe such modification to be erroneous, for as said in Hill v. Wampler, supra, 298 U.S. 460, 465, 56 S.Ct. 760, 762, 80 L.Ed. 1283: “A warrant of commitment departing in matter of substance from the judgment back of it is void.”
In 8 R.C.L. 232, § 230, it is said that the general rule is that the sentence begins on the day of sentence, in the absence of statute. I believe the authorities show that the rule, as stated, is not a general rule, but a minority rule.
In Albori v. United States (C.C.A.9) 67 F.(2d) 4, 7, the prisoner was convicted in the federal court, and judgment was pronounced. He appealed to this court. While the appeal was pending, he was convicted in the state court on indictments returned during the time the appeal in the federal case was pending. He appealed from the state court judgment, and, while such appeal was pending, this court affirmed the judgment of the federal court in the first appeal. The federal court, while the state appeal was pending, ordered the marshal to execute the commitment. When the appeal in the federal case was taken, the prisoner was released on bond, but he was taken into custody when he appealed from the state court judgment, and was in a county jail at the time the federal court ordered the marshal to execute the commitment. Inasmuch as the prisoner was sentenced to the same jail where he was then confined by the state, the marshal merely notified the state officer in whose custody the prisoner was, to hold him pursiiant to the federal commitment.
Before the prisoner had completed his sentence under the federal judgment, the conviction in the state court was affirmed, and the prisoner was released to state officers to serve the state sentence. After that sentence was completed, he was taken into custody by federal officers to complete his federal sentence. The federal sentence had expired if service began on the date the federal court ordered the marshal to execute the commitment. This court so held, saying that the failure of the marshal to execute the commitment did not postpone the beginning of the sentence, because “The prisoner being safely confined in the county jail, where he was ordered to serve his sentence, there was no office for the commitment to perform.”
I understand that case to hold that service of the federal sentence began on the day the court ordered the marshal to execute the commitment, not because the order was made on that day, but because the prisoner began his incarceration under the previously declared judgment on that day. The case is therefore in accord with the majority rule, independent of statute, that service of sentence begins at the time of actual incarceration.
It therefore appears that the statute is merely declaratory of what the rule was prior to its enactment, and therefore, since the application of the statute could not prejudice appellant, we should apply it. Under that statute, appellant’s sentence began when he was delivered to appellee at McNeil’s Island. However, under the statute or under the law independent thereof, I believe the challenged order should be affirmed, and therefore dissent