127 F.2d 373 (10th Cir. 1941), 2305, Hudspeth v. Melville

Docket Nº:2305.
Citation:127 F.2d 373
Party Name:HUDSPETH, Warden, v. MELVILLE.
Case Date:November 12, 1941
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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127 F.2d 373 (10th Cir. 1941)




No. 2305.

United States Court of Appeals, Tenth Circuit.

November 12, 1941

Rehearing Denied May 19, 1942.

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Summerfield S. Alexander, U.S. Atty., of Topeka, Kan. (Homer Davis, Asst. U.S. Atty., of Topeka, Kan., on the brief), for appellant.

E. R. Sloan, of Topeka, Kan., amicus curiae, on brief.

Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

This is a proceeding in habeas corpus. John W. Melville, hereinafter called petitioner, was indicted in two counts in the United States Court for Nebraska. The first count charged that he entered the First National Bank of Grand Island, Nebraska, with the intent to commit therein a felony, namely, to unlawfully and feloniously and with the intent to defraud, utter a check in the sum of $42.50, payable to the First National Bank of Grand Island, drawn on the Huntington National Bank of Columbus, Ohio, in and with which bank petitioner did not have sufficient funds or credit for the payment of such check or any part thereof; and the second count charged that he took, stole and carried away $42.50 in money, the property of the First National Bank of Grand Island, with the intent to steal and purloin it. Petitioner pleaded guilty to both counts, and was sentenced on the first to imprisonment in the penitentiary for a term of four years, and on the second to one year in jail, with provision that the sentence on the second count be suspended and petitioner placed on probation. Commitment issued upon the judgment under the first count and petitioner was confined in the federal penitentiary at Leavenworth, Kansas, serving the sentence. By petition for the writ of habeas corpus he sought discharge on the ground that the first count in the indictment did not charge any offense under the laws of the United States. The trial court granted the writ and entered final judgment releasing petitioner from custody. The warden appealed.

Subsection (a) of section 2 of the Act of May 18, 1934, 48 Stat. 783, as amended by the Act of August 24, 1937, 50 Stat. 749, 12 U.S.C.A. § 588b(a), provides that 'whoever shall enter or attempt to enter any bank, with intent to commit in such bank or building, or part thereof, so used, any felony or larceny, shall be fined not more than $5,000 or imprisoned not more than twenty years, or both; * * * or whoever shall take and carry away, with intent to steal or purloin, any property or money or any other thing of value not exceeding $50 belonging to, or in the care, custody, control, management, or possession of any bank, shall be fined not more than $1,000 or imprisoned not more than one year, or both. ' Section 102, chapter 29, Compiled Statutes of Nebraska 1929, provides that the term 'felony' signifies an offense punishable by death or imprisonment in the penitentiary, and that any other offense shall be denominated a 'misdemeanor'; and section 1212, chapter 28,

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provides that any person who, with intent to defraud, shall make, draw, utter, or deliver any check or draft in excess of $35.00 upon any bank or other depository, knowing that he does not have sufficient funds in or credit with such bank or depository for its payment, shall upon conviction be fined not less than $100 nor more than $5,000, or imprisoned in the penitentiary not exceeding seven years, or both, at the discretion of the court. The decisive question presented is whether the words 'any felony,' as used in subsection (a) of the federal statute, include felonies under state laws. If so, the court erred in discharging petitioner.

There are no common-law offenses against the United States. United States v. Hudson and Goodwin, 7 Cranch 32, 3 L.Ed. 259; United States v. Britton, 108 U.S. 199, 2 S.Ct. 531, 27 L.Ed. 698; United States v. Eaton, 144 U.S. 677, 687, 12 S.Ct. 764, 36 L.Ed. 591; United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 61 L.Ed. 857; Donnelley v. United States, 276 U.S. 505, 48 S.Ct. 400, 72 L.Ed. 676; Wilson v. United States, 8 Cir., 77 F.2d 236; Fulbright v. United States, 8 Cir., 91 F.2d 210; Norton v. United States, 9 Cir., 92 F.2d 753. The criminal jurisdiction of the courts of the United States is derived exclusively from acts of Congress. Jones v. United States, 137 U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691; Manchester v. Massachusetts, 139 U.S. 240, 11 S.Ct. 559, 35 L.Ed. 159; Kaufman v. United States, 2 Cir., 212 F. 613, Ann.Cas.1916C, 466.

But article 1, section 8 of the Constitution of the United States, authorizes Congress, inter alia, to borrow money on the credit of the United States, to coin money, and to enact all laws which shall be necessary and proper for carrying such powers into execution. That grant of national power is sufficiently broad in sweep to include the...

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