Biddle v. Thiele

• Decision Date: 13 January 1926
• Docket Number: No. 6870.,6870.
• Parties: BIDDLE, Warden, v. THIELE.
• Court: U.S. Court of Appeals — Eighth Circuit

11 F.2d 235 (1926)

BIDDLE, Warden, v. THIELE.

No. 6870.

Circuit Court of Appeals, Eighth Circuit.

January 13, 1926.

Al. F. Williams, U. S. Atty., and Alton H. Skinner, Asst. U. S. Atty., both of Topeka, Kan., for appellant.

Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

PHILLIPS, District Judge.

This is an appeal by W. I. Biddle, as warden of the United States Penitentiary at Leavenworth, Kansas, from a judgment discharging Alfred Thiele from custody upon his petition for habeas corpus.

Thiele was charged by indictment in the United States District Court for the Western District of Texas, San Antonio Division, in causes No. 4573 and No. 4314 with violations of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.). The indictment in cause No. 4573, omitting the formal parts, read as follows:

"That heretofore, to wit, on or about the 19th day of September, A. D. 1923, at the city of San Antonia, in the county of Bexar, state of Texas, Western district of Texas and San Antonio division thereof, and within the jurisdiction of this court, one Alfred Thiele did unlawfully, knowingly, willfully, and feloniously have in his possession for beverage purposes certain intoxicating liquor, to wit, two and one-half gallons of distilled spirits containing one-half of 1 per centum of alcohol by volume. * * *

"* * * That this is the third offense of unlawfully possessing intoxicating liquor committed by the said Alfred Thiele; that is to say, that heretofore, to wit, on May 16, 1922, in case No. 3590, pending at the San Antonio division of this honorable court, the said Alfred Thiele was adjudged guilty, as confessed in his plea of guilty, of the offense of having unlawfully had in his possession on or about the 12th day of December, A. D. 1921, certain intoxicating liquor, to wit, five gallons and three quarts of whisky, and that on the 16th day of May, A. D. 1922, in case No. 3683, pending at the San Antonio division of this honorable court, the said Alfred Thiele was adjudged guilty, as confessed in his plea of guilty, of the offense of having unlawfully had in his possession on or about the 1st day of April, A. D. 1922, certain intoxicating liquor, to wit twelve quarts of a liquid resembling whisky."

The indictment in cause No. 4314 charged Thiele with the unlawful possession of intoxicating liquor on the 1st day of April, 1923, in the Western district of Texas, San Antonio division. This indictment also undertook to charge a third or subsequent offense, by alleging the same prior offenses and convictions alleged in cause No. 4573, in substantially the same language as that employed in the indictment in cause No. 4573.

Thiele pleaded guilty in cause No. 4573, and was tried and convicted in cause No. 4314. In each of the above cases he was sentenced to pay a fine of $500 and to serve a term of 18 months in the United States Penitentiary at Leavenworth.

The petition for a writ of habeas corpus, among other things, set up that the sentences were excessive and void.

It will be noted that the same prior offenses and convictions were set up in both indictments, that one of the prior offenses was alleged to have been committed on December 12, 1921, and the other on April 1, 1922, and that the convictions for these offenses were both alleged to have been had on May 16, 1922.

Section 29 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½p), in part, provides:

"Any person violating the provisions of any permit, or who makes any false record, report, or affidavit required by this title, or violates any of the provisions of this title, for which offense a special penalty is not prescribed, shall be fined for a first offense not more than $500; for a second offense not less than $100 nor more than $1,000, or be imprisoned not more than ninety days; for any subsequent offense he shall be fined not less than $500 and be imprisoned not less than three months nor more than two years. It shall be the duty of the prosecuting officer to ascertain whether the defendant has been previously convicted and to plead the prior conviction in the affidavit, information or indictment."

As no special penalty is provided for the unlawful possession of intoxicating liquor, the provisions of the above section apply. Under this act, in order to constitute a...