Biddle v. Wilmot

• Citation: 14 F.2d 505
• Decision Date: 26 July 1926
• Docket Number: No. 7215.,7215.
• Parties: BIDDLE, Warden, v. WILMOT.
• Court: U.S. Court of Appeals — Eighth Circuit

14 F.2d 505 (1926)

BIDDLE, Warden, v. WILMOT.

No. 7215.

Circuit Court of Appeals, Eighth Circuit.

July 26, 1926.

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

Benjamin F. Endres and Keefe O'Keefe, both of Leavenworth, Kan., for appellee.

Before LEWIS, Circuit Judge, and TRIEBER and KENNAMER, District Judges.

TRIEBER, District Judge.

This is an appeal from an order of the District Court discharging the appellee from confinement in the penitentiary at Leavenworth, Kan., upon a petition of habeas corpus.

The material facts in the petition are that he is unlawfully detained in prison by the appellant; that he had been indicted in the District Court of the United States for the Northern District of California for having violated section 117 of the Penal Code (Comp. St. § 10287) by accepting bribes while a prohibition agent of the United States.

There were three counts in the indictment; the first count, after setting out fully that the appellee was a prohibition agent, duly appointed and acting, and that as such prohibition agent he made an affidavit before a duly appointed and acting United States commissioner for the said district, charging Roscoe Benson and J. J. Kolburn with the sale of intoxicating liquors. Thereupon a warrant was issued by the commissioner, the parties arrested, and the cause set for final hearing before the said commissioner on the 26th day of July, 1922, who dismissed the charge against Roscoe Benson, and held the defendant J. J. Kolburn to await the action of the grand jury.

It was then charged that on the 12th day of June, 1922, the appellee accepted a bribe from J. J. Kolburn, for the purpose of influencing him in favor of the said Benson and Kolburn, viz.: An automobile belonging to the said J. J. Kolburn, and which said automobile was accepted and received, possessed, and used by said Roy Wilmot for his own private use and purposes.

The second count charges in similar language the acceptance on June 17, 1922, of five gallons of whisky from Benson and Kolburn as a bribe for the same unlawful purpose.

The third count charges the acceptance of a bribe from J. J. Kolburn of $100 in money on the 29th day of July, 1922, for the same purpose, as set out in the first count.

Upon a trial to a jury, he was found guilty on all three counts and sentenced. The sentence reads:

"It is therefore ordered and adjudged that the said Roy Wilmot be imprisoned in the United States Penitentiary at Leavenworth, Kan., for the period of three (3) years and pay a fine of $300, on the third count of the indictment, and be imprisoned for the period of one year on the second count of the indictment and one year on the first count of the indictment; further ordered that said terms of imprisonment run consecutively.

"Judgment entered this 16th day of December, A. D. 1922."

The commitment, after setting out the conviction and sentence of appellee, proceeded:

"And this is to command you, the said keeper and warden and other officers in charge of the said United States Penitentiary, to receive from the United States marshal of the said Northern District of California, the said Roy Wilmot convicted and sentenced as aforesaid and him the said Roy Wilmot keep and imprison for the term of five (5) years.

"Herein fail not."

The grounds upon which the petition for the writ is based are as follows:

"Your petitioner therefore states that he has been advised by counsel that his term of imprisonment has expired and terminated and that he is entitled to his liberty; that such term expired April 7, 1925. Upon the same advice, your petitioner contends that the judgment and sentence of said court is and was unlawful because the honorable United States District Court for the Northern District of California sentenced your petitioner to a term of one year under the first count, and a term of one year under the second count of said indictment, and further ordered that said terms of imprisonment run consecutively, without specifying...