Cahill v. Biddle

• Decision Date: 05 June 1926
• Docket Number: No. 7100.,7100.
• Citation: 13 F.2d 827
• Parties: CAHILL et al. v. BIDDLE, Warden, etc.
• Court: U.S. Court of Appeals — Eighth Circuit

13 F.2d 827 (1926)

CAHILL et al. v. BIDDLE, Warden, etc.

No. 7100.

Circuit Court of Appeals, Eighth Circuit.

June 5, 1926.

Edward J. Cahill and John E. Kelly, in pro. per.

Alton H. Skinner, Asst. U. S. Atty., of Topeka, Kan. (Al. F. Williams, U. S. Atty., and John N. Free, Asst. U. S. Atty., both of Topeka, Kan., on the brief), for appellee.

Before LEWIS, Circuit Judge, and MUNGER and JOHNSON, District Judges.

MUNGER, District Judge.

Appellants were indicted in the District Court of the United States for the Southern District of Illinois for violations of the Act of Congress approved February 13, 1913 (Comp. St. § 8603). In five different counts of this indictment it was alleged that they broke the seal of or entered into railroad cars containing interstate shipments of freight, with intent to commit larceny in the car, that they did commit such larceny and that they unlawfully had possession of the goods stolen from such shipments of freight, knowing them to have been stolen. The goods were described as 80 barrels of nonbeverage alcohol. Another indictment against the defendants alleged, in separate counts, the unlawful possession of intoxicating spirituous liquor, and the unlawful transportation of such liquor, in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.). On motion of the district attorney the court ordered a consolidation of the two cases. A jury found the defendants guilty under both indictments on November 25, 1921. A single sentence of eight years' imprisonment in the United States penitentiary at Leavenworth, Kan., was imposed for the violations of the act of February 13, 1913, and for the violations of the National Prohibition Act a fine was imposed of $500 and costs, and the defendants were ordered to be imprisoned in the United States penitentiary at Leavenworth until the fines and costs were paid.

Appellants filed a petition for a writ of habeas corpus, alleging that the appellee, as warden of the penitentiary, illegally held appellants in execution of the sentence. The appellee moved a dismissal of the petition, because the facts alleged were not sufficient to require a writ of habeas corpus to be issued, and this motion was sustained, and the petition was dismissed. The petitioners have appealed.

It is claimed that the court erred in consolidating for trial the two indictments. This question is not reviewable by a proceeding in habeas corpus. Cardigan v. Biddle (C. C. A.) 10 F.(2d) 444, 446, 447; Howard v. United States, 75 F. 986, 997, 21 C. C. A. 586, 34 L. R. A. 509.

The appellants alleged that they were unlawfully imprisoned, to the extent that they were committed to the United States penitentiary as a means of enforcing payment of the fines, and this question may be considered, although the term of imprisonment imposed because of the violations of section 8603 of the Compiled Statutes has not yet expired. O'Brien v. McClaughry, 209 F. 816, 820, 126 C. C. A. 540. The maximum punishment provided by section 29, tit. 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½p), for a first offense of unlawful possession or unlawful transportation of intoxicating liquor is a fine of $500. The right to impose a fine gives authority to compel payment of the fine by imprisonment. Pierce v. United States, 255 U. S. 398, 401, 41 S. Ct. 365, 65 L. Ed. 697; Ex parte Barclay (C. C.) 153 F. 669, 670; United States v. Robbins, Fed. Cas. No. 16,171. As to the place of imprisonment, it has become the settled rule that, unless a statute of the United States requires one convicted to be confined in a penitentiary, a sentence of imprisonment for one year or less cannot be executed by confinement in a penitentiary. In re Mills, 135 U. S. 263, 270, 10 S. Ct. 762, 34 L. Ed. 107; In re Bonner, 151 U. S. 242, 255, 14 S. Ct. 323, 38 L. Ed. 149; Brede v. Powers, 263 U. S. 4, 12, 44 S. Ct. 8, 68 L. Ed. 132. The National Prohibition Act does not require imprisonment in the penitentiary for a first offense of any kind against the provisions of that act. For the more serious offenses, such as maintaining a nuisance (section 21 Comp. St. Ann. Supp. 1923, § 10138½jj), imprisonment for one year may be imposed, and for a first offense of illegal manufacture or sale of liquor (section 29) imprisonment for six months may be imposed. As these offenses cannot be punished by imprisonment in a penitentiary it is not permissible that minor violations of this act...