Kerr v. Squier, 10996.

• Decision Date: 28 September 1945
• Docket Number: No. 10996.,10996.
• Citation: 151 F.2d 308
• Parties: KERR v. SQUIER, Warden.
• Court: U.S. Court of Appeals — Ninth Circuit

151 F.2d 308 (1945)

KERR v. SQUIER, Warden.

No. 10996.

Circuit Court of Appeals, Ninth Circuit.

September 28, 1945.

John M. Schermer and James W. Mifflin, both of Seattle, Wash., for appellant.

J. Charles Dennis, U.S. Atty., of Seattle, Wash., and Guy A. B. Dovell, Asst. U. S. Atty., of Tacoma, Wash., for appellee.

Before DENMAN, STEPHENS, and BONE, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal from an order dismissing a petition for a writ of habeas corpus seeking appellant's release from the United States penitentiary at McNeil Island, Washington.

The indictment containing seven counts in Cause No. 5925-CR was returned on September 30, 1933, to which appellant, then defendant, George Kerr plead guilty to counts 2, 4, 5, 6 and 7, Counts 1 and 3 of said indictment being dismissed on motion of the government, whereupon Kerr was sentenced by the court to imprisonment on the second count for a period of ten years, on the fourth, fifth and sixth counts for a period of five years each, and on the seventh count for a period of two years and to pay a fine of $1,000.00, sentence under fourth count to commence to run upon expiration of sentence under second count; sentence under fifth count to commence to run upon expiration of sentence under fourth count; sentence under sixth count to commence to run upon expiration of sentence under fifth count, and sentence under seventh count to commence to run upon expiration of sentence under sixth count.

That indictment charged Kerr with violation of 18 U.S.C.A. § 320 in count two, in that he did rob one Walter E. Williams, a person having lawful charge, control and custody of certain mail matter being described as three registered mail bags thereof, and in counts four, five, and six, in that defendant did commit larcenies from and out of a post office of the United States of certain mail bags which were under separate labels and locks, and which charges were based upon violation of 18 U.S.C.A. § 317, and in count seven in that defendant did conspire with others to commit the offense charged in the preceding counts of the indictment.

The court below after finding his present imprisonment at McNeil Island to be based on the sentences for the above terms further found:

"IV. That while an inmate of said institution said petitioner's conduct has been good and he has worked in prison industries and from a computation of the time served by said petitioner, it appears he has already completed service of the legal maximum time of imprisonment in custody imposed under counts 2, 4 and 7 of said indictment, and that on a cumulative sentence of seventeen years thereunder would have been entitled to conditional release on July 28, 1944, or, with fine, August 28, 1944.

"V. That the three mail bags described in counts 4, 5 and 6 of the indictment were simultaneously taken and their taking involved but one transaction and were all of the mail bags carried at that time by the said Walter E. Williams, custodian thereof named in said indictment and each was under a separate label and lock as set forth in the said counts, to-wit:

"In count 4 as bearing label `From Sacramento, California, to San Francisco, California,' and closed by rotary lock No. J 1988-425;

"In count 5 as bearing label `From Sacramento, California, to Chicago, Illinois,' and closed by rotary lock No. H18880-384; and

"In count 6 as bearing label `From Sacramento, California, to Sacramento Terminal, Sacramento, California,' and closed by rotary lock No. L 1057-11."

Since on finding IV Kerr would have been entitled to conditional release on August 28, 1944, if sentences 2, 4, and 7 are alone valid, the question before us is whether sentences 5 and 6 are valid.

Kerr contends that since the "simultaneous" taking of the three mailbags was but "one transaction" there was but one offense and not the three offenses described in counts 4, 5 and 6. Hence since he has served his term on count 4, and his terms on other counts, he is now entitled to release.

The pertinent portions of the provisions of 18 U.S.C.A. § 317 creating the offenses for which Kerr was sentenced are:

"Whoever shall steal, take, or abstract * * * from or out of any * * * post office * * * any letter, postal card, package, bag, or mail * * * shall be fined not more than $2,000, or imprisoned not more than five years, or both."

It will be noted that the taking of a "bag" and the taking of a "letter" are each equally an offense. We can see no difference between a simultaneous taking of several letters as a single transaction and the similar taking of the three mails bags here found by the court. In Johnston v. Lagomarsino, 9 Cir., 88 F.2d 86, 88, we have held that a taking of three letters in such a simultaneous and single transaction as here found by the district court, constitutes a single offense, and ordered the release of Lagomarsino upon the service of the first of three sentences for the taking of the letters. We there held:

"The parcels charged to have been stolen under counts 3, 4, and 5 are three separate articles and had a different addressee. It is conceded by the appellant that the taking might have been simultaneous and continuous.

"In Braden v. United States, 8 Cir., 270 F. 441, in which Judge Sanborn, later Justice of the Supreme Court, sat with the other Circuit Judges, it is held that the larceny of four horses from a barn at the same time constituted but one offense. While every presumption must be indulged in favor of the judgment and sentence, Hall v. Johnston, Warden, 9 Cir., 86 F.2d 820, just decided, but where upon the face of the record it is disclosed that the offense charged involved several separate articles, not charged as separately taken, but which may have been simultaneous and continuously taken, a different relation obtains. Suppose a flock of sheep is stolen as one act. May the thief be punished for stealing each sheep simultaneously and continuously driven away? If a person kills a flock of sheep, unless under very peculiar circumstances, the killing of each sheep would be a separate act, as cutting separate mail bags. To take several letters from a mail depository simultaneously and continuously is one act and comprehends one intent.

"This court held in Parmagini v. United States, 9 Cir., 42 F.2d 721, that concealment and distribution of narcotics was a part of the indivisible acts of the offense of selling. That case,...