Dimenza v. Johnston

Decision Date08 October 1942
Docket NumberNo. 10080.,10080.
Citation131 F.2d 47
PartiesDIMENZA v. JOHNSTON, Warden.
CourtU.S. Court of Appeals — Ninth Circuit

John Bennett King, of San Francisco, Cal., for appellant.

Frank J. Hennessy, U. S. Atty., R. B. McMillan and A. J. Zirpoli, Asst. U. S. Attys., all of San Francisco, Cal., for appellee.

Before WILBUR, DENMAN, and MATHEWS, Circuit Judges.

PER CURIAM.

The Warden petitions for a rehearing on the ground that we have not followed the holding of the Circuit Court of Appeals in McDonald v. Hudspeth, 10 Cir., 129 F.2d 196, decided June 17, 1942, wherein the court considered three counts of an indictment under 12 U.S.C.A. § 588 b(b). In that case a different individual was named in each count as the one whose life was imperiled by the use of a dangerous weapon. It does not appear that the question was involved in the decision of the habeas corpus proceeding because in any event the term had not yet expired. Consequently the question as to whether there could have been a sentence of 25 years on each count was not open to the petitioner and was not properly before the court. The sentence for 25 years was clearly justified in that case on one count, and the sentence, if excessive, was void only as to the excess. Holiday v. Johnston, 313 U.S. 342, 550, 61 S.Ct. 1015, 85 L.Ed. 1392. The statement of the court that each count charged a separate offense was not within the issues properly raised by the petitioner in...

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14 cases
  • State v. Collins
    • United States
    • West Virginia Supreme Court
    • December 21, 1984
    ...is not barred for separate assaults on each of them. See United States v. Fleming, 504 F.2d 1045 (7th Cir.1974); Dimenza v. Johnston, 131 F.2d 47 (9th Cir.1942). Moreover, if other patrons of a business are also robbed, separate robbery convictions are permissible. See, e.g., Richardson v. ......
  • U.S. v. Delay
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • July 30, 1974
    ...Faleafine, 492 F.2d 18, 20 (9th Cir. 1974); United States v. Hopkins, 150 U.S.A.pp.D.C. 307, 464 F.2d 816, 823 (1972); Dimenza v. Johnston, 131 F.2d 47, 48 (9th Cir. 1942). The sentences under Counts II and III of the indictment must therefore be vacated while the sentence under Count IV wi......
  • United States v. Faleafine
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • January 25, 1974
    ...Judgment under (a) vacated; remanded for resentencing under (d). Dimenza v. Johnston, 9 Cir., 1942, 130 F.2d 465, rehearing denied, 1942, 131 F.2d 47. One count under subsection (a) and three separate counts under (d) (former (b)), each relating to jeopardizing a different person in committ......
  • United States v. Jackson
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • November 26, 2013
    ...that each life imperiled by a robbery with a deadly weapon did not constitute a separate and distinct bank robbery. Dimenza v. Johnston, 131 F.2d 47, 48 (9th Cir.1942). The Seventh Circuit rejected McDonald's application of the elements test in favor of lenity stemming from Bell. See United......
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