McNealy v. Johnston, 22959-R.
| Decision Date | 30 November 1939 |
| Docket Number | No. 22959-R.,22959-R. |
| Citation | 30 F. Supp. 312 |
| Parties | McNEALY v. JOHNSTON, Warden. |
| Court | U.S. District Court — Northern District of California |
Vincent Cullinan, of San Francisco, Cal., for petitioner.
Frank J. Hennessy, and A. J. Zirpoli, U. S. Atty. and Asst. U. S. Atty., both of San Francisco, Cal., for the United States Government.
Petitioner first applied for a writ of habeas corpus in this District Court on January 8, 1938. At that time his petition was denied because it had been prematurely brought and petitioner was not entitled to his freedom. The decision of the District Court was affirmed in an opinion by the Circuit Court of Appeals (McNealy v. Johnston, 1938, 9 Cir., 100 F.2d 280), which set forth a full statement of the issues and then concluded that petitioner was not entitled to a writ. For purposes of this present application, which was filed on March 21, 1939, a restatement of the pertinent facts is necessary.
Petitioner is confined at the United States Penitentiary on Alcatraz Island. He is held under two commitments based on indictments filed in United States District Courts of Florida and Alabama. After petitioner pleaded guilty to both indictments, the following sentences were imposed: On the Florida indictment, five years on count one and five years on count two, to run consecutively; on the Alabama indictment, three years, "beginning at the expiration of the sentence he is now serving for the Southern District of Florida; for his violation of Sec. 37, P.C. 18 U.S.C.A. § 88, and Secs. 190 and 192, P.C. 18 U.S.C.A. §§ 313, 315".
The first count of the Florida indictment dealt with the breaking into and entering a building used in part as a postoffice; the second count was for theft of stamps and money from the postoffice. The commitment issued by the Florida court recited that petitioner had been convicted of breaking into a United States postoffice and stealing postage stamps therefrom.
Petitioner began serving the Florida sentence on December 20, 1933. (The Alabama sentence was imposed on January 15, 1934.) According to 18 U.S.C.A. § 710, petitioner is entitled to a credit of eight days per month for good behavior. In addition he may receive credit for industrial good time. On July 16, 1939 petitioner completed eight years on his sentences, counting 887 days credit, which was composed of 768 days good time plus 119 days industrial good time.
It is petitioner's contention that he has served his full time on the valid portions of the sentences and that he is now entitled to his freedom. Specifically, petitioner challenges the validity of the first count in the Florida indictment, the length of the sentence on the second count, and the consecutive character of the sentence on the Alabama indictment.
The first count of the Florida indictment attempted to charge petitioner with a violation of section 192 of the United States Criminal Code, which makes entrance into a United States postoffice, with intent to steal therefrom, a crime. But the count in question recites that petitioner: "did unlawfully, wilfully, knowingly, feloniously, and forcibly break into a building, which was then and there used in part as a postoffice of the United States * * *, with the intent to commit larceny in said building." Such a charge fails to allege the two elements which are essential under section 192: First, breaking into the postoffice part of a building; and second, doing such an act with intent to commit larceny in that part of the building. Both of these averments are necessary in the first count of the indictment. Sorenson v. United States, 1909, 8 Cir., 168 F. 785; United States v. Campbell, 1883, C.C., 16 F. 233; United States v. Shelton, 1900, C.C., 100 F. 831; United States v. Martin, 1905, C.C., 140 F. 256. Therefore the first count does not allege a federal offense and the court had no power to sentence petitioner under that count. And since the first count of the Florida indictment is void, petitioner is required to serve only eight years under the valid count of the Florida indictment together with the sentence imposed by the Alabama court. Petitioner has now served his eight years — including time for good behavior and industrial effort — so he is being unlawfully restrained of his liberty in Alcatraz Penitentiary.
Two other points have been raised by petitioner in his application for a writ of habeas corpus. These will be briefly discussed, in view of our ruling that petitioner is entitled to his freedom because of the...
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United States v. Mason
...cf. United States v. Wright, 365 F.2d 135 (7th Cir. 1966), cert. denied, 386 U.S. 918, 87 S.Ct. 879, 17 L.Ed.2d 789; McNealy v. Johnston, 30 F.Supp. 312 (N.D.Cal.1939). Although the indictment here is not a model of clarity and does not precisely follow the statutory language, it is suffici......
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Polk v. Manning, 16822
...but added: 'We do not mean to intimate that we have come to such a conclusion.' Subsequently, in another proceeding, McNealy v. Johnston, D. C., 30 F.Supp. 312, 313, the same point was pressed by the prisoner and was rejected by the District Court, the Court stating that the phrase 'at the ......
- Caldwell v. United States, 3837.
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United States v. Clifton, Crim. A. No. 1569.
...involved, and this fact excited no comment from the Court in either case. Defendant places primary reliance upon McNealy v. Johnston, D.C. Cal., 30 F.Supp. 312, 314. The indictment in that case charged that petitioner "did unlawfully, wilfully, knowingly, feloniously, and forcibly break int......