McKee v. Johnston, 9235.

• Decision Date: 29 December 1939
• Docket Number: No. 9235.,9235.
• Parties: McKEE v. JOHNSTON, Warden.
• Court: U.S. Court of Appeals — Ninth Circuit

109 F.2d 273 (1939)

McKEE v. JOHNSTON, Warden.

No. 9235.

Circuit Court of Appeals, Ninth Circuit.

December 6, 1939.

Rehearing Denied December 29, 1939.

Frank McKee, in pro. per.

Frank J. Hennessy, U. S. Atty., and Robert B. McMillan and A. J. Zirpoli, Asst. U. S. Attys., all of San Francisco, Cal., for appellee.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

HEALY, Circuit Judge.

The appeal is from an order denying a petition for a writ of habeas corpus.

Jointly with others, appellant was indicted in the federal court for the District of Minnesota for violations of the statute punishing the stealing of mail matter, 18 U.S.C.A. § 317, and for conspiracy to commit the offenses, 18 U.S.C.A. § 88.

The indictment contained twelve counts, of which counts one and two were dismissed. Counts three to eleven, inclusive, charged the defendants with stealing nine letters from six registered and locked mail pouches, bearing separate numbers, at the Milwaukee station in the city of Minneapolis on January 3, 1933. The letters referred to in counts five, six and ten were alleged to have been taken from a single pouch, as were the letters mentioned in counts nine and eleven. Count twelve charged the conspiracy.

Appellant pleaded guilty to all counts except the two which had been dismissed, and on March 28, 1934 was sentenced as follows:

"Considered and adjudged: that Frank McKee * * * is guilty as charged and that as punishment therefor, he be committed * * * for a period of Seventeen (17) years and to pay a fine of $5,000.00.

* * * * * *

"The foregoing seventeen-year term of imprisonment imposed upon the defendant Frank McKee shall constitute a single general sentence under and on counts three, four, five, six, seven, eight, nine, ten, eleven and twelve of said indictment."

The maximum penalty for a violation of 18 U.S.C.A. § 317 is five years and a fine of $2,000. The maximum penalty for a violation of the conspiracy statute is two years and a fine of $10,000.

It is first contended that there was error in not ordering that the body of appellant be produced in court, in view of the requirements of R.S. § 755, 28 U.S.C.A. § 455,¹ and R.S. § 758, 28 U.S.C.A. § 458.² Appended to appellant's petition were certified copies of the indictment, the judgment and sentence and the commitment. As provided by the statute, if it appears from the petition itself that the party is not entitled to the relief asked, the writ should not be awarded. In this instance the petition presented questions of law only, and these the court was in a position to decide adversely to appellant on the facts appearing in his own petition. Brown v. Johnston, 9 Cir., 91 F.2d 370; compare Ex parte Yarbrough, Ku-Klux Cases, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274. While a show cause order was issued, to which the warden made a return, this course was unnecessary in view of the contents of the petition.

It is urged, on the authority of Johnston v. Lagomarsino, 9 Cir., 88 F.2d 86, that the stealing of all nine letters was but a single offense for which the maximum imprisonment is five years. Adding to this the two-year sentence which might be imposed on the conspiracy charge, and deducting allowance for good conduct, it is claimed that appellant has served the total term imposable and is entitled to his liberty.

The statute, as it read at the time of the indictment, provided that "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, or shall abstract or remove from any such letter, package, bag or mail, any article or thing contained therein * * *", shall be punished as specified. (Italics supplied.)

In Johnston v. Lagomarsino, supra, it was held that separate counts alleging the abstraction at the same time of three different parcels from the same mail pouch charged but a single offense. Here there was a felonious taking of mail matter from each of six different pouches. It may be assumed, and the assumption is probably warranted by the language of the indictment, that each taking was part of a continuous transaction. However, it does not appear that the takings were simultaneous. Since the record is not before us we are entitled to assume, in support of the judgment, that the takings were not simultaneous and that they were selective. Ex parte Yarbrough, Ku-Klux Cases, supra, 110 U.S. pages 653, 654, 48 S.Ct. 152, 28 L.Ed. 274.

In Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 711, 59 L.Ed. 1151, it was held that an indictment alleging in separate counts the cutting and injuring, on a certain date, of a number of mail bags, charged a separate offense as to each bag cut. Said the...