Johnston v. Lagomarsino, 8209.

• Decision Date: 08 February 1937
• Docket Number: No. 8209.,8209.
• Citation: 88 F.2d 86
• Parties: JOHNSTON, Warden, v. LAGOMARSINO et al.
• Court: U.S. Court of Appeals — Ninth Circuit

88 F.2d 86 (1937)

JOHNSTON, Warden, v. LAGOMARSINO et al.

No. 8209.

Circuit Court of Appeals, Ninth Circuit.

February 8, 1937.

H. H. McPike, U. S. Atty., and Robert L. McWilliams and A. J. Zirpoli, Asst. U. S. Atty., all of San Francisco, Cal., for appellant.

Raymond J. O'Connor, of San Francisco, Cal., for appellees.

Before GARRECHT and HANEY, Circuit Judges, and NETERER, District Judge.

NETERER, District Judge.

Reversal is sought from an order of the District Court granting a writ of habeas corpus discharging the appellee Ray Lagomarsino, from custody of the appellant. Appellee Ray Lagomarsino was indicted on five counts. The charging part of count one is that appellee Ray Lagomarsino "did then and there unlawfully, wilfully, knowingly, and feloniously break into a certain post office and a building used in part as a post office at said Colma with the intent on the part of them, the said defendants, to commit larceny in such building and in the part thereof so used as a post office"; and count 2 omitting the technical charging words, "with the intent to rob said mail," "cut a certain mail pouch used for the conveyance of mail," describing it; count 3 charges that appellee Ray Lagomarsino "did steal, take and abstract from and out of an authorized depository for mail matter * * * a certain parcel addressed to H. M. Russell, Room 255 Pacific Building, San Francisco * * * intended to be conveyed by mail and carried and delivered by means of the Post Office establishment of the United States to the person to whom the same was addressed"; count 4 charges that appellee, Ray Lagomarsino, did "steal, take and abstract from and out of an authorized depository for mail matter * * * a certain parcel addressed to Mr. Angelo Revere"; count 5 charges did "steal, take and abstract from and out of an authorized depository for mail matter * * * a certain insured parcel * * * addressed to Harry Deller, Box 95, Colma * * *."

The defendant was, on conviction, imprisoned "for the period of five (5) years each on counts one and two * * * to run concurrently * * * for a period of five (5) years as to the third count of the indictment * * * to commence and run upon the expiration and execution of the judgment imposed upon said defendant under counts one and two * * * for the period of five (5) years as to the fourth count to commence * * * at the expiration and execution of the judgment imposed * * * under count three * * * for * * * five (5) years as to the fifth count * * * to commence * * * at the expiration and execution of the judgment imposed on defendant under count four." Defendant claims the maximum sentence that may be imposed under section 317, title 18, U.S.C. A., is five years, and under section 312, title 18, U.S.C.A., is three years. The petitioner charges that the sentences imposed on counts four and five are excessive, illegal, and void. That the lawful sentences imposed have been served, and further detention is illegal.

Section 317, title 18, U.S.C.A., provides: "Whoever shall steal, take, or abstract, or by fraud or deception obtain, from or out of any mail, post office or station thereof, or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail * * * shall be fined not more than $2,000, or imprisoned not more than five years." (Italics supplied.)

Section 312, title 18, U.S.C.A., 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 * * * shall be fined not more than $500, or imprisonment not more than three years, or both." (Italics supplied.)

Mr. Justice Story in ...