Shapiro v. King, 12102.

• Citation: 125 F.2d 890
• Decision Date: 25 February 1942
• Docket Number: No. 12102.,12102.
• Parties: SHAPIRO v. KING, Warden.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

125 F.2d 890 (1942)

SHAPIRO v. KING, Warden.

No. 12102.

Circuit Court of Appeals, Eighth Circuit.

February 25, 1942.

Ralph R. Quillian, of Atlanta, Ga. (Frank Brockus, of Kansas City, Mo., on the brief), for appellant.

Thomas A. Costolow, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., and William W. Barron, of Washington, D. C., Atty., Department of Justice, on the brief), for appellee.

Before STONE, THOMAS, and JOHNSEN, Circuit Judges.

STONE, Circuit Judge.

This is an appeal in a habeas corpus proceeding by appellant against the warden of the Medical Center at Springfield, Missouri, where appellant is confined.

The only basis presented here for reversal is that an unlawful sentence has extended the imprisonment beyond a lawful term.

Appellant was convicted in the Southern District of New York on all four counts in each of two indictments (identified as C95-924 and C95-926) both of which charged violations of Sections 1 and 2 of the Sherman Anti-Trust Act, 15 U.S.C.A., §§ 1 and 2. Each indictment contained four counts which were similar in allegation: the first count was for conspiring to restrain interstate commerce; the second was for conspiring to monopolize interstate commerce; the third for attempting to monopolize such commerce; and the fourth with monopolizing such commerce. One difference between the indictments was that the first had to do with commerce in "raw, dressed and dyed rabbit skins", while the second had to do with "raw, dressed and dyed fur skins, such as fox, raccoon, beaver, leopard, badger, seal, ermine, martin, lynx, wolf, weasel, sable, fitch, skunk, kolinsky, opossum, otter, guanaquito, ocelot, mole, muskrat, squirrel and mink."

Under the first indictment the sentence was one year imprisonment on each of the four counts, the sentences on counts one and two to run consecutively, and the sentences on counts three and four to run concurrently with each other and with the sentence imposed on count two; and a fine of $5,000.00 upon each of counts one and two — thus the total sentence amounted to imprisonment for a period of two years and the imposition of a fine of $10,000.00. In the second case the sentence was one year imprisonment on each of the four counts, the sentences on counts one, two and four being made to run consecutively with each other and with the sentences imposed under the first case, while the sentence on the third count was made to run concurrently with the other three counts of the indictment; and a fine of $5,000.00 was imposed upon each of counts one, two and four — thus making the total sentence for three years with a fine in the amount of $15,000.00. Before the filing of this petition for habeas corpus, appellant had served three years and paid the entire amount of the fines imposed against him. The asserted grounds for relief against the alleged over-sentence are based upon two contentions: one is that the sentences imposed upon counts one and two of each of the indictments are for the same offense; the other is that counts one and two of the second indictment include the offenses alleged in counts one and two of the first indictment.

First Contention.

The substance of the argument in support of the contention that counts one and two of each of the indictments cover the same offense is that each of these counts is for a conspiracy which is the same conspiracy in count one and count two of each indictment. Count one of each indictment is based upon Section 1 of the Act, which makes "every * * * conspiracy, in restraint of trade or commerce among the several States" illegal. The second count of each indictment is based upon Section 2 of the Act which declares guilt of every person who shall conspire "to monopolize any part of the trade or commerce among the several States." Appellant insists that...