George Ebeling v. Thomas Morgan

• Decision Date: 01 June 1915
• Docket Number: No. 736,736
• Parties: GEORGE EBELING, Appt., v. THOMAS W. MORGAN, Warden of the United States Penitentiary at Leavenworth, Kansas
• Court: U.S. Supreme Court

237 U.S. 625

35 S.Ct. 710

59 L.Ed. 1151

GEORGE EBELING, Appt.,

v THOMAS W. MORGAN, Warden of the United States Penitentiary at Leavenworth, Kansas.

No. 736.

Argued and submitted April 7, 1915.

Decided June 1, 1915.

Messrs. Frans E. Lindquist, William P. Borland, Martin J. Ostergard, Charles S. McLane, Edwin J. Shannahan, Oscar F. Wimmer, Herman D. Kissenger, Leonard Waddell, Luther

N. Dempsey, and Ira S. Gardner for appellant.

Assistant Attorney General Wallace for appellee.

Mr. Justice Day delivered the opinion of the court:

The appellant, Ebeling, was convicted in the United States district court for the eastern district of Missouri of violations of § 189 of the Criminal Code [35 Stat. at L. 1124, chap. 321, Comp. Stat. 1913, § 10,359]. The indictment contains seven counts. The second, third, fourth, fifth, sixth, and seventh charge that, on the 21st day of January, 1910, said Ebeling did wilfully, knowingly, and feloniously tear, cut, and injure a certain bag then and there used for the conveyance of mails of the United States, each count describing the mail pouch so torn, cut, and injured by its lock and rotary number, and in each count it was alleged that the pouch in such count named was in a certain railway postal car, then and there in transit on a certain railroad, and that the act was done with intent to forcibly, knowingly, and feloniously rob, steal, and carry away the contents of the pouch. Ebeling entered a plea of guilty, and was sentenced to pay a fine of $500 and be imprisoned in the United States penitentiary at Leavenworth, Kansas, for a period of three years on the second count; and a like fine and imprisonment were imposed because of each the third, fourth, fifth, sixth, and seventh counts, to run consecutively with the sentence under the second count; but it was provided that the imprisonment as to the seventh count should begin, run, and terminate concurrently with the sentences imposed under the other counts, making in all a period of fifteen years' imprisonment. Ebeling, having served the sentence of three years imposed under the second count, applied to the district court of the United States for the district of Kansas for a writ of habeas corpus to procure his release from further imprisonment, upon the ground that he had endured all the punishment that could be legally imposed upon him by imprisonment under said indictment. The district court denied the application, and refused to issue the writ, and appeal was then prosecuted to this court.

This case raises the question whether one who, in the same transaction, tears or cuts successively mail bags of the United States used in conveyance of the mails, with intent to rob or steal any such mail, is guilty of a single offense, or of additional offenses because of each successive cutting with the criminal intent charged. If the successive cuttings into the different bags constitute different offenses, then the court below was right in refusing the writ of habeas corpus. If but a single offense was committed, notwithstanding separate mail bags were successively cut with the felonious intent named in the statute, then the appellant was entitled to the writ, and should have been discharged by order of the court upon the proceedings below.

Section 189, under which this indictment was prosecuted, provides:

'Whoever shall tear, cut, or otherwise injure any mail bag, pouch, or other thing used or designed for use in the conveyance of the mail, or shall draw or break any staple or loosen any part of any lock, chain, or strap attached thereto, with intent to rob or steal any such mail, or to...