Daugherty v. United States

• Decision Date: 30 January 1925
• Docket Number: No. 6595.,6595.
• Citation: 2 F.2d 691
• Parties: DAUGHERTY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

2 F.2d 691 (1924)

DAUGHERTY v. UNITED STATES.^*

No. 6595.

Circuit Court of Appeals, Eighth Circuit.

November 5, 1924.

Rehearing Denied January 30, 1925.

James Daugherty, pro se.

Lafayette French, Jr., U. S. Atty., and George A. Heisey, Asst. U. S. Atty., both of St. Paul, Minn.

Before SANBORN and LEWIS, Circuit Judges, and FARIS, District Judge.

LEWIS, Circuit Judge.

The plaintiff in error was charged in three counts of an indictment with commissions of the offense defined by Section 2 of the Act of December 17, 1914. 38 Stat. 785, Comp. Stat. § 6287h. The first count charged that on January 4, 1923, at Minneapolis, Minnesota, he sold to Charles Elmer cocaine, the amount being unknown to the grand jury; the second, that on January 10, 1923, at Minneapolis, Minnesota, he sold to F. H. Entriken cocaine, the amount being unknown to the grand jury; and the third, that on January 17, 1923, at Minneapolis, Minnesota, he sold to D. Ellison morphine, the amount being unknown to the grand jury.

The contention that each sale should be taken as resulting from one and the same criminal intent and therefore the three counts charge only one crime, is not sound; because criminal intent is not an element of the crime, and because each count charges a different sale to a different person and on a different day, and if the sales were made as charged they constituted three separate offenses.

It was not necessary that the indictment negative the exceptions named in the Act. Wallace v. U. S., 243 F. 300, 304, 156 C. C. A. 80; Melanson v. U. S., 256 F. 783, 785, 168 C. C. A. 129; Rothman v. U. S. (C. C. A.) 270 F. 31; Manning v. U. S. (C. C. A.) 275 F. 29.

The plaintiff in error pleaded guilty to all of the charges in the three counts and was sentenced to imprisonment in the penitentiary. His motion in arrest was then denied, and he now complains that he was sentenced on the three counts to imprisonment for fifteen years, five years on each count, the maximum provided in Section 9 of the Act (Comp. St. § 6287o). In this we think he is mistaken, and that the sentence was only for a term of five years. It reads thus: That the defendant "be confined in the United States Penitentiary situated at Leavenworth, Kansas, for the term of five (5) years on each of said three counts and until he shall have been discharged from said penitentiary by due course of law. Said term of imprisonment to run consecutively and not concurrently."

Where sentences are imposed on verdicts of guilty, or pleas of guilty, on several counts or on several indictments consolidated for trial, it is the rule that the sentences so imposed run concurrently, in the absence of specific and definite provision therein that they be made to run consecutively by specifying the order of sequence. If the order in which the terms of imprisonment for the different offenses is to be served, is not clearly designated, the terms are to be served concurrently, and the defendant cannot be held in further confinement under the sentence after the expiration of the longest term imposed. Cumulative sentences are permissible, and in some cases are appropriate, but when imposed on different counts or indictments there must be certainty in the order of sequence. Howard v. U. S., 75 F. 986, 21 C. C. A. 586, 34 L. R. A. 509. A clear exposition of the reasons for this requirement is made by Mr. Justice Bradley in United States v. Patterson (C. C.) 29 F. 775. That was a proceeding on habeas corpus. One Baldwin, who sued out the writ, had been convicted and sentenced on three counts of an indictment charging him with violation of the National Banking Act (Comp. St. § 9744 et seq.). The sentence was this: "The court do order and adjudge that the prisoner, Oscar L. Baldwin, be confined at hard labor in the state's prison of the state of New Jersey, for the term of five years upon each of the three indictments above named, said terms not to run concurrently; and from and after the expiration of said terms until the costs of this prosecution shall have been paid." In considering the effect of this sentence the learned Justice said:

"It is manifest that the judgment or sentence in this case is uncertain in this respect: it imposes the penalty of imprisonment at hard labor in the state's prison for the term of five years upon each indictment, and adds that the said terms shall not run concurrently, but does not specify upon which indictment either of said terms of imprisonment is to be...