McGinley v. Hudspeth, 2275.
| Decision Date | 26 May 1941 |
| Docket Number | No. 2275.,2275. |
| Citation | 120 F.2d 523 |
| Parties | McGINLEY v. HUDSPETH, Warden. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Kenneth E. McAfee, of Oklahoma City, Okl., for appellant.
Summerfield S. Alexander, U. S. Atty. and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
Otto J. McGinley, a prisoner in the federal penitentiary at Leavenworth, Kansas, hereinafter called petitioner, instituted this proceeding in habeas corpus to secure his release from further detention. In July, 1937, an indictment was returned against petitioner in the Omaha Division of the United States Court for Nebraska, in which it was charged that on October 12, 1936, he unlawfully transported a stolen Plymouth Sedan automobile, motor number T. J. 278551, from Omaha, in the Omaha Division of the court, to Los Angeles, California, in violation of the Dyer Act, 18 U. S.C.A. § 408. Petitioner was tried, and at the close of the evidence the court directed a verdict of acquittal on the sole ground that the evidence was insufficient to show that the crime charged had been committed within the Omaha Division. In March, 1938, an indictment containing three counts was returned against petitioner in the McCook Division of the United States Court for Nebraska. The first count charged that on or about October 8, 1936, petitioner and one Theodore Harr formed an unlawful conspiracy having for its object and purpose the transportation of a stolen Plymouth automobile from Culbertson, Nebraska, in the McCook Division of the court, to Long Beach, California, and that certain overt acts were committed in furtherance of such conspiracy; the second count charged that on October 12, 1936, petitioner and Harr unlawfully transported a stolen 1935 Plymouth Coach automobile from Culbertson, Nebraska, to Long Beach, California; and the third count charged that on October 11, 1936, petitioner and Harr unlawfully transported from Lincoln, Nebraska, to Long Beach, California, a certain 1935 Plymouth Coach automobile. Petitioner was convicted on the first and second counts; and on March 30, 1939, he was sentenced to two years in the penitentiary on the first count and three years on the second, with provision that the sentences should run concurrently, not consecutively. The sentence on the first count has been fully served and is not involved here. By petition for the writ of habeas corpus, petitioner attacked the sentence imposed under the second count on the ground that he had been placed in double jeopardy for a single offense. The district court denied the petition, and petitioner appealed.
The question whether petitioner was placed in double jeopardy for a single crime depends upon whether the first indictment and the second count in the subsequent indictment charged the same offense. The recognized test for determining the identity or separateness of offenses charged in two indictments or in different counts in a single indictment is whether the same proof would sustain a conviction under both or whether each requires proof of one or more facts which is not required by the other. Curtis v. United States, 10 Cir., 67 F.2d 943; Schultz v. Zerbst, 10 Cir., 73 F.2d 668; Chrysler v. Zerbst, 10 Cir., 81 F.2d 975; Norton v. Zerbst, 10 Cir., 83 F.2d 677, certiorari denied 299 U.S. 541, 57 S.Ct. 24, 81 L.Ed. 398; Bracey v. Zerbst, 10 Cir., 93 F.2d 8; Reger v. Hudspeth, 10 Cir., 103 F.2d 825, certiorari denied 308...
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