Carter v. Johnston
| Decision Date | 06 December 1944 |
| Docket Number | No. 10794.,10794. |
| Citation | 145 F.2d 882 |
| Parties | CARTER v. JOHNSTON. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James A. Carter, in pro. per.
Frank J. Hennessy, U. S. Atty., R. B. McMillan and Joseph Karesh, Asst. U.S. Attys., all of San Francisco, Cal., for appellee.
Before DENMAN, STEPHENS, and HEALY, Circuit Judges.
This is an appeal from an order dismissing appellant's petition to the district court for the issuance of a writ of habeas corpus.
The petition alleged that petitioner and another person had been indicted by the grand jury at the United States District Court for the Western District of Oklahoma for robbery from First National Bank of Okeene, Oklahoma, of $1,165.25 belonging to that bank, in violation of 12 U.S.C.A. § 588b. In aggravation and in violation of § 588c the indictment charged that "said defendants did, in the commission of said offense of feloniously stealing and carrying away of the moneys in the robbery of said First National Bank of Okeene, Oklahoma, and in avoiding apprehension for such offense, force certain persons then employees of said bank, to-wit, C. C. Wisdom, Vice President and Cashier, and Hanna B. Wisdom, bookkeeper, through the display and use of firearms to accompany them, the said defendants, from the house of said banking institution to a point about one and one-half miles east of Okeene, Oklahoma, the actual place being to the Grand Jurors unknown, without the consent and against the will of the said employees."
The petition further alleged that appellant was tried by jury, was found guilty, with a recommendation of the jury that appellant be not sentenced to death. The recommendation was pursuant to 12 U.S.C.A. § 588c, later considered, providing that the punishment may be "by death if the verdict of the jury shall so direct." The district court sentenced appellant to the federal penitentiary for a term of 27 years, of which sentence appellant has served a period which, with good behavior credit earned, exceeds 10 years.
The petition admitted that appellant was guilty of the offense, but claimed that under the federal statute under which he was convicted his sentence is valid for a period of ten years only and hence that he should be discharged from the custody of appellee.
The district court below issued an order to show cause why a writ of habeas corpus should not be granted. Appellee appeared and filed his motion to dismiss the petition on the ground that it failed to recite facts sufficient to entitle appellant to the writ, accompanying the motion with a memorandum of points and authorities. Appellant filed what he entitled a traverse to the motion to dismiss, with accompanying memorandum of points and authorities. The cause came on for hearing and the district court granted the motion to dismiss and ordered discharged the order to show cause. This appeal followed.
The statutory provisions covering the offense on which the appellant was convicted are Sections 588b and 588c of Title 12 U.S. C.A. Section 588c, in force and effect at the time of the commission of the offense by appellant, reads as follows: "Whoever, in committing any offense defined in section 588b of this title, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be punished by imprisonment for not less than 10 years, or by death if the verdict of the jury shall so direct."
Appellant claims that the words "shall be punished by imprisonment for not less than 10 years, or by death if the verdict of the jury shall so direct," in the absence of a direction for the death penalty, must be construed to mean a sentence of ten years' imprisonment and no more.
We do not agree. To us the congressional intent is clear. The Act plainly means that the...
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United States v. Faleafine
...him without the consent of such person, shall be imprisoned for not less than ten years i.e., up to and including life, Carter v. Johnston, 9 Cir., 1944, 145 F.2d 882. or punished by death. . . ." This, too, increases the subsection (a) penalty and also if subsection (d) is involved, the su......
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We the People Nevada v. Secretary of State
...language is applied in accordance with its plain meaning unless it is ambiguous). 23. Emphasis added. 24. Cf. Carter v. Johnston, 145 F.2d 882, 883 (9th Cir.1944) (providing that the phrase "imprisonment for not less than 10 years" means that the offender is subjected to a "sentence of ten ......
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Binkley v. Hunter
...which prohibits the imposition of cruel or unusual punishments. The same contention concerning this statute was made in Carter v. Johnston, 9 Cir., 145 F.2d 882, 883. There, as here, it was contended that the power of the court under this statute was limited to the imposition of a ten year ......
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Ex parte Goss, 26713
...This case was followed by the Circuit Court for the Ninth Circuit in Bates v. Johnston, 111 F.2d 966, and in the later case of Carter v. Johnston, 145 F.2d 882. I respectfully enter my ...