Bertsch v. Snook
| Decision Date | 22 November 1929 |
| Docket Number | No. 5493,5669.,5493 |
| Citation | 36 F.2d 155 |
| Parties | BERTSCH v. SNOOK, Warden. SAME v. ADERHOLD, Warden. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Otto Christensen, of Los Angeles, Cal., and Edward C. Hill and Frank A. Doughman, both of Atlanta, Ga., for appellant.
Clint W. Hager, U. S. Atty., and Hal Lindsay, Asst. U. S. Atty., both of Atlanta, Ga., for appellees.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
These appeals are taken from orders dismissing two separate petitions of appellant for the writ of habeas corpus. They may be considered together, since the indictment under which appellant was sentenced to imprisonment is the same in both cases. The indictment was found in the Southern District of Ohio, and the first count charged appellant and others with a conspiracy "to assault any persons having charge, control or custody of any mail matter * * * also to rob, steal and purloin the mail matter, including letters, packages and pouches, containing such matter, * * * and to receive, secrete, conceal, unlawfully have in their possession and destroy such mail matter." The second count charged the same defendants with conspiracy "to rob, steal and purloin any mail bag, * * * to convey away such mail bags to the hindrance and detriment of the public service, to appropriate the same to their own use, and to tear, cut and otherwise injure the said mail bags with intent to rob and steal any mail contained therein." Similar overt acts were charged in the two counts, and robbery of the same mail truck was charged as an overt act in each count. At the trial appellant first interposed a plea of autrefois acquit, but he withdrew it and entered a plea of guilty as charged in each count. There were other counts to the indictment, but they were nol. prossed. The Ohio court imposed a sentence of two years on each of the two counts, to run consecutively and to be served in the Atlanta penitentiary.
In No. 5493 the writ of habeas corpus was denied at a time when appellant had served less than two years in the penitentiary. In it there is no question presented except that of possible error in allowing the plea of autrefois acquit to be withdrawn and accepting instead a plea of guilty. Any error involved in that sentence was one which could be reviewed only on a direct appeal, and is not subject to review in habeas corpus proceedings. Van Meter v. Snook (C. C. A.) 15 F.(2d) 377.
In No. 5669 appellant had served two years in the penitentiary, and his petition was based on the ground that the two counts charge the same offense, and consequently that part of the sentence which purported to impose an additional two years of imprisonment was void because contrary to the Fifth Amendment.
It thus appears that appellant before he filed his petition had been subjected to the maximum imprisonment authorized for a single conspiracy by section 37 of the Criminal Code (18 USCA § 88) under which the prosecution was had. It follows that, if...
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...766 (1943). Robbery is in fact larceny committed by violence, and includes stealing and asportation as well as assault. Bertsch v. Snook, 36 F.2d 155 (CA 5, 1929); Costner v. United States, 139 F.2d 429 (CA 4, Accord, Whitton v. State, 479 P.2d 302 (Alaska 1970). Because the prohibition emb......
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Rutkowski v. United States
...12, 136 F.2d 766. Robbery is in fact larceny committed by violence, and includes stealing and asportation as well as assault. Bertsch v. Snook, 5 Cir., 36 F.2d 155; Costner v. United States, 4 Cir., 139 F.2d We think that Jolly v. United States, supra, is not dispositive of this case. There......
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Caballero v. Hudspeth, 599.
...is five years, petitioner did not thereby waive his right to object by habeas corpus to a sentence of seven years. In Bertsch v. Snook, 5 Cir., 36 F.2d 155, 156, it was said: "It follows that, if the two conspiracy counts to which he pleaded guilty charged the same offense, it was error to ......