Ballerini v. Aderholt, 5865.

• Decision Date: 28 October 1930
• Docket Number: No. 5865.,5865.
• Citation: 44 F.2d 352
• Parties: BALLERINI v. ADERHOLT, Warden.
• Court: U.S. Court of Appeals — Fifth Circuit

44 F.2d 352 (1930)

BALLERINI v. ADERHOLT, Warden.

No. 5865.

Circuit Court of Appeals, Fifth Circuit.

October 28, 1930.

Clint W. Hager, U. S. Atty., and Hal Lindsay, Asst. U. S. Atty., both of Atlanta, Ga., for appellee.

Before BRYAN, FOSTER, and WALKER, Circuit Judges.

BRYAN, Circuit Judge.

Appellant, upon his plea of guilty to an indictment in two counts, was sentenced to the Atlanta penitentiary for five years on the first count and four years on the second count, the sentences to run consecutively. Both counts are based upon a single sale of an ounce of heroin, a derivative of opium. The first count charges that appellant made the sale without being registered and without having paid the special tax provided by law, and the second count charges that he made the sale without requiring from the purchaser a written order issued in blank by the Commissioner of Internal Revenue; all in violation of the Harrison Narcotic Act, as amended (26 USCA § 211, and § 691 et seq.). Appellant, having served the maximum sentence of five years imposed under the first count, sought by his petition for the writ of habeas corpus to obtain his release from the penitentiary on the ground that the two counts of the indictment charged the same offense; and has taken this appeal from an order of the District Court denying the prayer of that petition.

Under the Fifth Amendment one may not for the same offense be twice put in jeopardy. In determining what is the same offense the test usually applied is "whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction; when there could, the second cannot be maintained; when there could not, it can be." 1 Bishop's Cr. Law (9th Ed.) § 1052. In Morey v. Commonwealth, 108 Mass. 433, a leading case often cited by the Supreme Court, it is said: "The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offence. A single act may be an offence against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." See Tritico v. United States (C. C. A.) 4 F.(2d) 664, where several Supreme Court cases on this subject are collected. To those cases should be added the more recent case of Albrecht v. United States, 273 U. S. 1, 47 S. Ct. 250, 71 L. Ed. 505. Ex parte Nielsen, 131 U. S. 176, 9 S. Ct. 672, 676, 33 L. Ed. 118, which also cites with approval the Morey Case; it is said: "Where, as in this case, a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense." Mr. Bishop expresses the view that, in order to give effect to the constitutional provision under consideration, "the same offense must be interpreted as equivalent to the same criminal act" (Bishop Cr. Law § 1060); and his view, subject to the qualification enforced in United States v. Lanza, 260 U. S. 377, 43 S. Ct. 141, 67 L. Ed. 314, and other cases, that prosecutions may be had for the same act in both the state and the United States courts, because of the jurisdiction, follows closely the rule of the Nielsen Case. The offense charged in each count was the unlawful sale of the same ounce of heroin....