Beland v. United States, No. 10137.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtSIBLEY, HOLMES, and McCORD, Circuit
PartiesBELAND v. UNITED STATES.
Docket NumberNo. 10137.
Decision Date27 August 1942

128 F.2d 795 (1942)

BELAND
v.
UNITED STATES.

No. 10137.

Circuit Court of Appeals, Fifth Circuit.

June 11, 1942.

Rehearing Denied August 27, 1942.


128 F.2d 796

J. Forrest McCutcheon, of Dallas, Tex., for appellant.

Frank F. Taylor and William P. Fonville, Asst. U. S. Attys., both of Fort Worth, Tex., for appellee.

Before SIBLEY, HOLMES, and McCORD, Circuit Judges.

McCORD, Circuit Judge.

Charles Beland was found guilty on counts 16, 18, and 42 of an indictment charging violations of the narcotic laws and a conspiracy. He received a general sentence of five years on counts 16 and 42, and a ten year suspended sentence on count 18. On appeal this court affirmed the judgment as to the conspiracy count 42, reversed the judgment on the other counts, and remanded the case with direction that Beland "be resentenced accordingly". Beland v. United States, 5 Cir., 117 F.2d 958, 960. The Supreme Court denied certiorari 313 U.S. 585, 61 S.Ct. 1110, 85 L.Ed. 1541.

On November 10, 1941, after the mandate of this court had issued, but before imposition of sentence by the trial court, the United States Attorney for the Northern District of Texas filed an information under 26 U.S.C.A.Int.Rev.Code, § 2557 (b) (7) setting forth that on two previous occasions Beland had been convicted of unlawfully selling morphine, a derivative of opium, in violation of the narcotic laws of the United States. On November 11, 1941, Beland came into court, and having been fully apprised of the allegations of the information and of his right to a jury trial as to the truth thereof, and having been cautioned as to his rights, he acknowledged that he was the person named in the information and that he had been previously convicted as alleged. The court thereupon sentenced Beland to serve a term of seven years in the penitentiary, a term below the maximum prescribed by § 2557 (b) (5) (6) (7). Subdivision 6 of this section provides: "A person who, after having been two times convicted of selling, importing, or exporting, or conspiring to sell, import, or export, opium, * * * derivative, or preparation of opium, * * * again sells, * * * or conspires to sell, import, or export, any of the said narcotic drugs, in violation of the laws of the United States, shall, upon conviction of such third offense, or any offense subsequent thereto, be fined not more than $10,000 or imprisoned in a Federal penitentiary for not more than twenty years, or both, in the discretion of the court, whenever the fact of such previous convictions is established in the manner prescribed in paragraph 7 of this subsection." Paragraph 7 provides for the filing of an information by the District Attorney, and for a jury trial to establish the truth of its allegations if such allegations are not expressly admitted...

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28 practice notes
  • State v. Oliver
    • United States
    • Superior Court of New Jersey
    • November 8, 1996
    ...1453, 55 L.Ed.2d 497 (1978); Pettway v. U.S., 216 F.2d 106 (6th Cir.1954); Wilson v. U.S., 205 F.2d 567 (9th Cir.1953); Beland v. U.S., 128 F.2d 795 (5th Cir.1942), cert. denied, 317 U.S. 676, 63 S.Ct. 157, 87 L.Ed. 543 (1942), reh'g denied, 317 U.S. 710, 63 S.Ct. 205, 87 L.Ed. 566 (1942); ......
  • People v. Chavez, No. 79SA358
    • United States
    • January 5, 1981
    ...1972), nor the right to grand jury indictment, United States v. Baca, 451 F.2d 1112 (10th Cir. 1971); see also Beland v. United States, 128 F.2d 795 (5th Cir.), cert. denied, 317 U.S. 676, 63 S.Ct. 157, 87 L.Ed. 543, reh'g denied 317 U.S. 710, 63 S.Ct. 205, 87 L.Ed. 566 (1942)." United Stat......
  • United States v. Inendino, No. 78 CR 70.
    • United States
    • U.S. District Court — Northern District of Illinois
    • September 21, 1978
    ...1972),5 nor the right to grand jury indictment, United States v. Baca, 451 F.2d 1112 (10th Cir. 1971); see also, Beland v. United States, 128 F.2d 795 (5th Cir.), cert. denied, 317 U.S. 676, 63 S.Ct. 157, 87 L.Ed. 543, reh'g denied 317 U.S. 710, 63 S.Ct. 205, 87 L.Ed. 566 Given this backgro......
  • Sherman v. United States, No. 14977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 8, 1957
    ...any crime. It merely alleged facts, which, if established, went solely to the question of punishment. Beland v. United States, 5 Cir., 128 F.2d 795; McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542; Moore v. State of Missouri, 159 U. S. 673, 16 S.Ct. 179, ......
  • Request a trial to view additional results
28 cases
  • State v. Oliver
    • United States
    • Superior Court of New Jersey
    • November 8, 1996
    ...1453, 55 L.Ed.2d 497 (1978); Pettway v. U.S., 216 F.2d 106 (6th Cir.1954); Wilson v. U.S., 205 F.2d 567 (9th Cir.1953); Beland v. U.S., 128 F.2d 795 (5th Cir.1942), cert. denied, 317 U.S. 676, 63 S.Ct. 157, 87 L.Ed. 543 (1942), reh'g denied, 317 U.S. 710, 63 S.Ct. 205, 87 L.Ed. 566 (1942); ......
  • People v. Chavez, No. 79SA358
    • United States
    • January 5, 1981
    ...1972), nor the right to grand jury indictment, United States v. Baca, 451 F.2d 1112 (10th Cir. 1971); see also Beland v. United States, 128 F.2d 795 (5th Cir.), cert. denied, 317 U.S. 676, 63 S.Ct. 157, 87 L.Ed. 543, reh'g denied 317 U.S. 710, 63 S.Ct. 205, 87 L.Ed. 566 (1942)." United Stat......
  • United States v. Inendino, No. 78 CR 70.
    • United States
    • U.S. District Court — Northern District of Illinois
    • September 21, 1978
    ...1972),5 nor the right to grand jury indictment, United States v. Baca, 451 F.2d 1112 (10th Cir. 1971); see also, Beland v. United States, 128 F.2d 795 (5th Cir.), cert. denied, 317 U.S. 676, 63 S.Ct. 157, 87 L.Ed. 543, reh'g denied 317 U.S. 710, 63 S.Ct. 205, 87 L.Ed. 566 Given this backgro......
  • Sherman v. United States, No. 14977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 8, 1957
    ...any crime. It merely alleged facts, which, if established, went solely to the question of punishment. Beland v. United States, 5 Cir., 128 F.2d 795; McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542; Moore v. State of Missouri, 159 U. S. 673, 16 S.Ct. 179, ......
  • Request a trial to view additional results

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