Bracey v. Zerbst

• Decision Date: 24 November 1937
• Docket Number: No. 1569.,1569.
• Citation: 93 F.2d 8
• Parties: BRACEY v. ZERBST, WARDEN.
• Court: U.S. Court of Appeals — Tenth Circuit

93 F.2d 8 (1937)

BRACEY v. ZERBST, WARDEN.

No. 1569.

Circuit Court of Appeals, Tenth Circuit.

November 24, 1937.

Jack Bracey, pro se.

Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.

Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges.

PHILLIPS, Circuit Judge.

This is an appeal from an order denying an application for a writ of habeas corpus filed by Jack Bracey. An indictment was returned against Bracey in the District of Columbia containing five counts; each count charged a felonious assault with a dangerous weapon upon Marie C. Bracey, the first with a metal pitcher, the second with a bottle opener, the third with a certain bottle, the fourth with a certain other bottle, and the fifth with a certain hard blunt instrument.

Bracey was arraigned and pleaded guilty to each of the five counts. On December 16, 1932, he was sentenced to be imprisoned in a penitentiary to be designated by the Attorney General of the United States for periods of two to three years on each of counts one, two, three and four, to run consecutively, and for a period of two to three years on count five to run concurrently with the sentence imposed on count one.

Bracey was delivered to the superintendent of the Washington Asylum and Jail and shortly thereafter in accordance with the judgment and sentence of the court was transferred to the District of Columbia Reformatory. On July 20, 1933, he was transferred to the United States Northeastern Penitentiary at Lewisburg, Pennsylvania. On December 18, 1935, he was transferred to the United States Penitentiary Annex at Leavenworth, Kansas. On January 23, 1936, he was transferred to the United States Penitentiary at Leavenworth, Kansas.

In his petition Bracey contends: (1) That the indictment charges but one offense and that the trial court was without jurisdiction to impose a sentence on more than one count of the indictment; (2) that he was twice put in jeopardy; (3) that the sentences violate the sentence and parole laws of the District of Columbia, and (4) that he cannot be lawfully confined in a penitentiary outside of the District of Columbia.

The test for determining whether the offenses charged in the several counts of an indictment are identical is whether the facts alleged in one, if offered in support of the others, would sustain a conviction. Curtis v. United States (C.C.A.10) 67 F. 2d 943, 947; Morgan v. Devine, 237 U.S. 632, 639, 35 S.Ct. 712, 59 L.Ed. 1153; Ebeling v. Morgan, 237 U.S. 625, 630, 631, 35 S.Ct. 710, 59 L.Ed. 1151.

Where each count requires proof of a fact which the others do not, the several offenses charged are not identical. Casebeer v. United States (C.C.A.10) 87 F.2d 668, 669; Schultz v. Zerbst (C.C.A. 10) 73 F.2d 668, 669; Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306; Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489.

It is plain that each of counts one, two, three and four charged an assault with a separate and distinct weapon, and each therefore required proof of a fact which the others did not. It follows that they charged separate and distinct offenses.

It is not necessary to determine whether count five charged a separate and distinct offense because the sentence imposed thereon runs concurrently with the sentence on count one.

If the offenses were not identical there is no double jeopardy. Furthermore, double jeopardy may be waived and may not be raised for the first time in a collateral proceeding. Curtis v. United States (C.C.A.10) 67 F.2d 943, 948; Brady v. United States (C.C.A.8) 24 F.2d 399, 405. This record does not disclose that Bracey presented any claim of double jeopardy to the trial court in which he was sentenced. It shows affirmatively that he entered a plea of guilty to each count of the indictment.

We conclude there is no merit in the first and second contentions.

The contention that the sentence imposed was excessive is also without merit. The indeterminate sentence law applicable to the District of Columbia, approved July 15, 1932 (47 Stat. 697, D.C.Code Supp. I, 1933, T. 6, § 451 et seq.) provides in section 3:

"That hereafter, in imposing sentence on a person convicted in the District of Columbia of a felony, the justice or judge of the court imposing such sentence shall sentence the person for a maximum period, not exceeding the maximum fixed by law, and for a minimum period not exceeding one-fifth of the maximum period fixed by law, and any person so convicted and sentenced may be released on parole as herein provided at any time after having served the minimum sentence." (D.C.Code Supp. I, 1933, T. 6, § 453)

Title 6 of the Code of the District of Columbia 1929, § 27 (31 Stat. p. 1321, c. 854, § 804) provides:

"Every person convicted of an assault with intent to commit mayhem, or of an assault with a dangerous weapon, shall be sentenced to imprisonment for not more than ten years."

The assaults involved here were committed with dangerous weapons, and the maximum to which Bracey could have been sentenced on each count was ten years. The maximum sentence imposed on...