Lonergan v. United States

• Decision Date: 02 March 1923
• Docket Number: 6139.
• Citation: 287 F. 538
• Parties: LONERGAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

287 F. 538

LONERGAN v. UNITED STATES.

No. 6139.

United States Court of Appeals, Eighth Circuit.

March 2, 1923

E. D O'Sullivan, of Omaha, Neb. (W. N. Jamieson and C. J Sourthard, both of Omaha, Neb., on the brief), for plaintiff in error.

George A. Keyser, Asst. U.S. Atty., of Omaha, Neb. (James C Kinsler, U.S. atty., of Omaha, Neb., on the brief), for the United States.

Before STONE, Circuit Judge, and TRIEBER and JOHNSON, District Judges.

STONE Circuit Judge.

Morris Lonergan, plaintiff in error, with another, was convicted upon the third and fourth counts of an indictment for violation of section 1 of the Act of Feb. 13, 1913 (37 Stat 670, Sec. 1; Comp. St. Sec. 8603).

A motion to strike the purported bill of exceptions from the files because allowed and filed out of time was sustained at the time of hearing and the bill of exceptions stricken out. We have before us, therefore, only the record proper and can consider only such claimed errors as affect it. The first of these is that counts 3 and 4 of the indictment are insufficient. Counsel for the government concede that count 3 is defective. Count 4 is for possession of property stolen while being transported in interstate commerce, defendant having knowledge that it was so stolen. The objection urged to this indictment is that, although it alleges knowledge that the property was stolen, it does not allege that there was knowledge that it was stolen from interstate commerce. The statute does not require knowledge that the property was stolen while in interstate commerce but requires only knowledge that the property was stolen. The entire statutory requirements are that the property possessed shall have been stolen from interstate commerce and that such possession is with knowledge that the property is stolen property.

It is, also, objected that the sentence was excessive and 'not in keeping with the character or gravity of the offense or the degree of moral turpitude involved in the alleged crime. ' We cannot consider such a matter, the amount of punishment being a matter exclusively within the judgment of the trial court.

Another objection to the sentence is that it is in excess of that permitted by the law. The sentence was ten years' imprisonment on each count, to run concurrently, and one fine of $5,000. The statute authorizes both fine up to $5,000 and imprisonment up to ten years. As the prison sentences on the two counts were...