the state authorities had a right to retain jurisdiction over the person of the defendant, and this they did. Ibid.
It is uniformly recognized that when 'the court of one sovereign takes a person into its custody on a criminal charge he remains in the jurisdiction of that sovereign until it has been exhausted, to the exclusion of the courts of the other sovereign. That rule rests upon principles of comity, and it exists between federal and state courts.' Wall v. Hudspeth, 10 Cir., 108 F.2d 865, 866; Strewl v. McGrath, supra, 191 F.2d 348, and the cases therein cited. We are of the opinion that this rule is applicable in the instant case.
When the defendant was produced in this court on March 5, 1954, he was produced in obedience to a writ of habeas corpus ad prosequendum, which commanded his production solely for the purpose of sentence. This same writ ordered his return to the Hudson County Jail after the imposition of sentence. There was clearly no intent to wrest the defendant from the jurisdiction and custody of the state authorities; in fact, we entertain some doubt as to the right of the federal authorities to demand exclusive custody of the defendant under the circumstances of the instant case. When the defendant was returned to the Hudson County Jail it was to await disposition of the proceedings then pending against him in the state court and not transportation to a federal institution. The proceedings in the state court were thereafter concluded, and upon the defendant's execution of the 'Waiver and Consent,' supra, he was surrendered to a parole officer of the State of Pennsylvania.
The defendant argues that in the absence of a specific direction as to the order in which the term of imprisonment imposed in this court was to be served, the servitude thereunder must be regarded as concurrent with his servitude in the Pennsylvania State Prison. The defendant relies upon the generally recognized rule of presumptive concurrence, to wit, where two or more terms of imprisonment are imposed by the same court, or courts of concurrent jurisdiction, the sentences and the servitudes thereunder must be construed as concurrent in the absence of a specific direction that they shall be consecutive. We are of the opinion that the rule is not applicable, where, as here, one sentence is imposed by the state court and the other by the federal court. Zahn v. Kipp, Rohr v. Hudspeth, both supra; Zerbst v. McPike, 5 Cir., 97 F.2d 253; United States v. Scalise, D.C., 86 F.Supp. 908. The commencement of the term of imprisonment imposed by a federal court is governed by statute, supra, which specifically provides: 'No sentence shall prescribe any other method of computing the term.'
The defendant also urges in support of his present motion the case of Smith v. Swope, 9 Cir., 91 F.2d 260, which was discussed by this Court in the case of United States v. De Fillippo, D.C., 108 F.Supp. 410, 412. We therein stated: 'The reading of the cited case discloses that at the time of sentence the prisoner was in the exclusive custody of the United States Marshal, who, after sentence had been imposed, surrendered him to the local officials in disobedience of the commitment and without authority. The court there held that under the circumstances the sentence commenced to run when the prisoner was delivered to the marshal for the service of sentence, and that the sentence 'was not subject to modification by the unauthorized act of the marshal in surrendering the prisoner * * * to the state authorities'.' The case sub judice is not comparable. The defendant here was not in the exclusive custody of the United States Marshal at the time the federal sentence was imposed, but was in the exclusive custody of the Warden of the Hudson County Jail under a commitment issued out of the state court. The principle of the cited case is therefore not applicable here.
The defendant further complains that upon his reparole by the Pennsylvania authorities he was at liberty for almost a year before he was apprehended on the federal warrant and subsquently committed to the Federal Correctional Institution. This was truly an unfortunate circumstance, but it did not make the federal sentence a complete nullity. See Mitchell v. Shank, D.C., 105 F.Supp. 274. It may be a factor which the federal authorities may take into consideration upon the defendant's application for parole, but it will not avail him here.
The motion of the defendant will be dismissed as without merit for the reasons herein stated.