Mcintosh v. White

• Decision Date: 05 October 1927
• Docket Number: No. 7782.,7782.
• Citation: 21 F.2d 934
• Parties: McINTOSH v. WHITE, Warden.
• Court: U.S. Court of Appeals — Eighth Circuit

21 F.2d 934 (1927)

McINTOSH v. WHITE, Warden.

No. 7782.

Circuit Court of Appeals, Eighth Circuit.

October 5, 1927.

George McIntosh, in pro. per.

Alton H. Skinner, Asst. U. S. Atty., of Topeka, Kan. (Al F. Williams, U. S. Atty., of Topeka, Kan., on the brief), for appellee.

Before WALTER H. SANBORN and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

WALTER H. SANBORN, Circuit Judge.

The appellant in this case was arraigned, tried and convicted, and sentenced on the first, second, and sixth counts of the indictment against him in the United States District Court of the Southern District of Illinois. He sued out a writ of error from the United States Circuit Court of Appeals of the Seventh Circuit, and assigned 25 alleged errors, which were heard and adjudged against him by that court. McIntosh v. U. S., 1 F.(2d) 427.

The first count of the indictment charged that the appellant, being a person who was dealing in and selling morphine sulphate, and who had not registered with the collector of internal revenue of the United States in the district as such dealer, and had not paid to the collector the special tax required by law, at Bloomington, Ill., sold on May 15, 1922, to Charles E. Penn one ounce of morphine sulphate without a written order on a form issued in blank by the Commissioner of Internal Revenue. The second count charged that appellant, on April 7, 1922, at Bloomington, Ill., under like circumstances, sold to Robert D. Brown 60 ounces of cocaine hydrochloride. The sixth count charged that the appellant on the 7th day of March, 1922, unlawfully carried from the city of Bloomington, Ill., to Robert D. Brown, in the city of South Bend, Ind., one ounce of morphine sulphate and one-half ounce of cocaine hydrochloride, not then being an employee acting within the scope of his employment of any person who had registered and paid the special tax, and not then and there being a person delivering such drugs that had been prescribed and dispensed by a physician, dentist, or veterinary surgeon, who had registered under the terms of the act and had been employed to prescribe for a particular person receiving such drug.

As Judge Phillips well said in Cardigan v. Biddle (C. C. A.) 10 F.(2d) 444, 446: "Where one seeks discharge from confinement after conviction for an offense upon a petition for habeas corpus, the sole questions presented are whether petitioner was convicted by a court having jurisdiction of his person and the offense, and whether the sentence pronounced was one within the power of the court. Tullidge v. Biddle (C. C. A. 8) 4 F.(2d) 897; Franklin v. Biddle (C. C. A. 8) 5 F.(2d) 19; Knewel v. Egan, 268 U. S. 442, 445, 45 S. Ct. 522, 69 L. Ed. 1036." Nor is an application for a writ of habeas corpus, or the writ itself, available as a substitute for a writ of error.

The first complaint of the appellant is that the clerk of the trial court was without authority to issue the warrant of the court for his commitment to the penitentiary at Leavenworth for 15 years, because on page 502 of the bill of exceptions in the appellant's case in the Circuit Court of Appeals of the Seventh Circuit this colloquy appears to have been had after the jury returned its verdict.

"The Court: Now, in this case, you can take the matter up and sue out a writ of error any time. But in this case this defendant is absolutely innocent, or else he merits any punishment that can be meted out to him under the law. The jury has found that he was guilty on three counts, and he will be fined $2,000 on each count and sentenced to five years' imprisonment in the United States Penitentiary at Leavenworth, Kansas, on each count. Thirty days to file a bill of exceptions.

"Mr. Schroeder: May I ask if the sentences will run concurrently or separately.

"The Court: No, sir; separately."

The contention of the appellant is that the word "separately" here means concurrently, all running and stopping at the same time, like the four wheels of a wagon. But in our opinion that was not the sense in which the judge used the word, and we are confirmed in this view by the judgment of the trial court, which reads:

"It is therefore considered and adjudged by the court that the said defendant, George McIntosh, for the offense by him committed in manner and form as charged in counts 1, 2, and 6 of the indictment No. 17385, and as found by the jury in this case, be confined in the United States penitentiary at Leavenworth, Kansas, for a period of five years on each of said counts 1, 2, and 6, said sentence to run consecutively, and to pay a fine to the United States in the sum of $2,000, on each of said counts 1, 2, and 6, making a total fine of $6,000."

The second contention of the appellant is that there was but one offense charged in the three counts of the indictment, and that was the failure to register and pay the tax. But the failure to register or pay the tax would not have...