Hensley v. United States

• Decision Date: 10 February 1947
• Docket Number: No. 9341.,9341.
• Citation: 82 US App. DC 14,160 F.2d 257
• Parties: HENSLEY v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

82 US App. DC 14, 160 F.2d 257 (1947)

HENSLEY v. UNITED STATES.

No. 9341.

United States Court of Appeals District of Columbia.

Argued January 6, 1947.

Decided February 10, 1947.

Writ of Certiorari Denied May 5, 1947.

Mr. James R. Kirkland, of Washington, D. C., with whom Mr. M. Edward Buckley, Jr., of Washington, D. C., was on the brief, for appellant. Mr. Ira Chase Koehne, of Washington, D. C., also entered an appearance for appellant.

Mr. Oliver O. Dibble, Assistant United States Attorney, of Washington, D. C., with whom Mr. George Morris Fay, United States Attorney, and Mr. William Hitz, Assistant United States Attorney, both of Washington, D. C., were on the brief, for appellee. Mr. Edward M. Curran, United States Attorney at the time the record was filed, and Mr. Sidney S. Sachs, Assistant United States Attorney, both of Washington, D. C., also entered appearances for appellee.

Before GRONER, Chief Justice, and WILBUR K. MILLER and PRETTYMAN, Associate Justices.

Writ of Certiorari Denied May 5, 1947. See 67 S.Ct. 1305.

PRETTYMAN, Associate Justice.

Appellant was indicted in three counts for violation of the Marihuana Tax Act.¹ The first count related to a transfer of 48 ounces of marihuana on October 30, 1942. The second count related to the transfer of 940 cigarettes and 48 ounces of marihuana on November 4, 1942. The third count related to the unlawful possession of 125 grains of marihuana, not involved in either of the two transfers, on November 4, 1942. He at first pleaded not guilty to all counts, but later withdrew that plea to the third count, pleaded guilty to that count, and was sentenced to imprisonment upon that plea. The prosecuting attorney entered a nolle prosequi to the first and second counts. Appellant entered upon service of his sentence. About a month later, the court of its own motion ordered the sentence vacated and set aside and, upon motion of the Government, dismissed the count of the indictment upon which that sentence had been based.

Thereafter, appellant was indicted in eight counts, two of which were identical with Counts one and two of the first indictment. None of the eight related to the transaction to which the third count of the earlier indictment had related. He was tried and convicted upon the two counts alone, and was sentenced upon the judgment of conviction. He appeals from that judgment and sentence.

Appellant's first and principal point is that in view of what had transpired he was placed in double jeopardy by the second indictment. We do not think so. The three counts of the first indictment related to different offenses, not merely to different offenses arising from the same transaction but to three different transactions. He was not indicted in the second indictment for the same offense or for the same transaction charged in the third count in the first indictment. The well-established test of double jeopardy is the identity of the offenses charged. Appellant was not placed in jeopardy by the arraignment and plea of not guilty to the first two counts in the first indictment or by the prosecutor's nolle prosequi of those counts. That he was placed in jeopardy by the plea of guilty and sentence upon...