Carpenter v. Hudspeth, 2061.
| Citation | 112 F.2d 126 |
| Decision Date | 03 July 1940 |
| Docket Number | No. 2061.,2061. |
| Parties | CARPENTER v. HUDSPETH, Warden. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Kenneth M. Wormwood, of Denver, Colo., for appellant.
Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
By this appeal we are asked to review an order of the trial court denying a petion for a writ of habeas corpus to discharge petitioner from further detention in the federal penitentiary at Leavenworth, Kansas. Two indictments were returned in the United States Court for Southern Illinois. The first contained four counts and charged respectively that petitioner and others broke the seal on a described railroad car containing an interstate shipment of freight with the intent to commit larceny therein; that they stole certain footwear from such car; that they bought, received and had such footwear in their possession, well knowing that it had been thus stolen; and that they conspired to break seals on railroad cars containing interstate shipments, to steal merchandise therefrom, and to buy, receive and conceal merchandise which had been stolen from interstate shipments of freight. The second indictment likewise contained four counts. The first charged the entering of the car with the intent to commit larceny therefrom; the second charged the theft of certain folding tables therefrom; the third charged the purchase, receipt and concealment of such tables, well knowing that they had been thus stolen; and the fourth charged a conspiracy to receive and conceal such tables. The two causes were consolidated for trial, and petitioner was found guilty on each count in both indictments. He was sentenced to a term of five years each on the first, second and third counts, and to a term of two years on the fourth count of the indictment in the first case, with provision that such sentences should run consecutively; and he was sentenced to like terms on the respective counts in the indictment in the second case; but it was further provided that the sentences imposed in the second case should run concurrently with those imposed in the first, that is to say, seventeen years in the aggregate. Commitment issued on December 17, 1930, petitioner was delivered to the respondent as warden of the penitentiary, and he is being detained under such process.
The essence of the contention advanced by petitioner is that the first, second, and third counts in each indictment were based upon one continuous transaction which constituted a single offense for which the maximum imprisonment authorized by law was ten years; that such maximum together with the term of two years imposed under the fourth count amounted in the aggregate to twelve years; and that with allowance for good conduct provided by statute, service of the sentences was completed on January 13, 1939. Inasmuch as the sentences in the two cases run concurrently it will suffice to consider only those imposed in the first case. No complaint is made in respect to the sentence of two years under the fourth count. The contention is therefore narrowed to the sentences under the first, second, and third counts. These counts were drawn under section 1 of the Act of January 28, 1925, 43 Stat. 793, 18 U.S.C.A. § 409, the pertinent parts of which provide:
"That whoever shall unlawfully break the seal of any railroad car containing interstate or foreign shipments of freight or express, or shall enter any such car with intent in either...
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Torres v. United States
...directly with the statute in question and not merely an analogous one. The question apparently first arose in Carpenter v. Hudspeth, 10 Cir., 1940, 112 F.2d 126, 127, certiorari denied, 311 U.S. 682, 61 S.Ct. 62, 85 L.Ed. 440. There it was held that the offense of stealing goods from inters......
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