Dockter v. White
| Decision Date | 07 March 1928 |
| Docket Number | No. 7908.,7908. |
| Citation | 25 F.2d 74 |
| Parties | DOCKTER v. WHITE, Warden. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Al. F. Williams, U. S. Atty., and Alton H. Skinner, U. S. Atty., both of Topeka, Kan., and L. E. Wyman, Asst. U. S. Atty., of Hutchinson, Kan., for appellee.
Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.
This is an appeal from the dismissal of an application for a writ of habeas corpus. The appellant and another were indicted on the charge that they did "unlawfully, wrongfully, and feloniously, with intent to defraud the United States of America, C. C. Cantrell and other persons whose names are to the grand jurors unknown, steal, take and carry away twenty (20) blank money orders, the number of which are to the grand jurors unknown, of the value of one ($1.00) dollar, from the possession of C. C. Cantrell, said postmaster, said money order blanks being then and there the property of the United States for the use and benefit of the post office at Haskell, Oklahoma, and so taken from the possession of the said C. C. Cantrell without his knowledge and consent by the said Edgar E. Thompson and Samuel Dockter, with the fraudulent and felonious intent on the part of the said defendants to appropriate same to their own use and benefit, contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States of America." Upon a plea of guilty, he was sentenced to pay a fine upon execution and to serve ten years in the penitentiary. After having served three years of the sentence, he applied for a writ of habeas corpus on the ground that the sentence was in excess of that allowed by law and that he has served the maximum sentence which could lawfully be imposed. If his contention be true, he is entitled to the writ. Cardigan v. Biddle, 10 F.(2d) 444, this court.
His contention is that the indictment is under section 313, tit. 18, U. S. C. A. (Criminal Code, § 190), which authorizes a maximum imprisonment of only three years. The government claims that he was indicted under section 99, tit. 18, U. S. C. A. (Criminal Code, § 46). Section 99 is as follows:
R. S. § 5456; Act March 4, 1909, c. 321, § 46, 35 Stat. 1097.
Section 313 is as follows:
R. S. § 5475; Act March 4, 1909, c. 321, § 190, 35 Stat. 1124.
A comparison of the indictment with the language of these two sections convinces that it might be construed to be under either of these two sections. The appellant might, for this crime, have been charged under ...
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Conerly v. United States
...432 (8th Cir. 1944). Robinson v. United States, supra, disapproved of Morrison v. White, 34 F.2d 244 (10 Cir. 1929) and Dockter v. White, 25 F.2d 74 (8th Cir. 1928) and relied instead upon Phillips v. Biddle, 15 F.2d 40 (8th Cir. 1926), cert. denied 274 U.S. 735, 47 S.Ct. 576, 71 L.Ed. 1311......
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Robinson v. United States, 12789.
...by or belonging to the post office department.'" 34 F.2d loc. cit. 245. A substantially similar situation was presented in Dockter v. White, 8 Cir., 25 F. 2d 74, where the petitioner for habeas corpus had also broken into a post office and stolen blank money orders therein. It was alleged i......
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Sullivan v. United States, 13050.
...Court in imposing sentence. See and compare Jolly v. United States, 170 U.S. 402, 407-408, 18 S.Ct. 624, 42 L.Ed. 1085; Dockter v. White, 8 Cir., 25 F.2d 74; Morrison v. White, 10 Cir., 34 F.2d The order appealed from is affirmed. 1 § 82, 18 U.S.C.A.: "Whoever shall take and carry away or t......
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United States v. Leeman, Cr. No. 447 L.
...inconsistent, however, with the cases of Jolly v. United States, 170 U.S. 402, 18 S.Ct. 624, 42 L.Ed. 1085 (1898) and Dockter v. White, 25 F.2d 74 (6th Cir. 1928). In the former case, the Supreme Court affirmed a conviction of theft of postage stamps which was brought under former § 99 rath......