Ex parte Aubert

Petition for writ of habeas corpus.

On September 19, 1929, the petitioner, then incarcerated in the state penitentiary at San Quentin upon a commitment issued out of -a state court, was brought before this court upon a writ of habeas corpus ad prosequen-dum, and tried and convicted by a jury of violating section 37, Cr. Code U. S. (18 USCA § 88), whereupon this court sentenced him: “To be imprisoned for a period of two years in a United States penitentiary and pay a fine in the sum of $1000.” The petitioner was immediately thereafter, in compliance with said writ, returned to the state penitentiary to serve the remainder of his sentence under the commitment theretofore issued by the state court. He was released from the state penitentiary on the 21st day of May, 1931, after having served said sentence. He was then taken into custody by the United States marshal under the commitment from this court dated September 19, 1929, “enroute *137 to the Federal penitentiary at McNeil Island.” On May 28, 1931, while still in the custody of the marshal en route to the penitentiary, application was made for a writ of habeas corpus.

The petitioner contends that the sentence of the United…