Morgan v. Sylvester
| Decision Date | 24 March 1916 |
| Docket Number | 4534. |
| Citation | 231 F. 886 |
| Parties | MORGAN, Warden, v. SYLVESTER et al. |
| Court | U.S. Court of Appeals — Eighth Circuit |
L. S Harvey, Asst. U.S. Atty., of Kansas City, Kan. (Fred Robertson, U.S. Atty., of Kansas City, Kan., on the brief) for appellant.
P Louis Zickgraf, of Pittsburg, Kan. (John L. Kirkpatrick, of Pittsburg, Kan., on the brief), for appellees.
Before ADAMS and CARLAND, Circuit Judges, and TRIEBER, District Judge.
The appellees, Sylvester and Wulle, were jointly indicted in the District Court of the United States for the Northern District of Ohio, in one count for burglarizing a post office at Mt Blanchard, Ohio, in violation of the provisions of section 192 of the federal Penal Code, and in another count for stealing certain property of the United States from and out of that post office, in violation of the provisions of section 47 of the Penal Code. In due course of procedure they were tried, found guilty as charged, and sentenced by the court to be imprisoned in the United States penitentiary at Leavenworth, Kan., for different periods of time on each count. The term of imprisonment on the second count was to begin at the expiration of the term imposed on the first count. Pursuant to their convictions and sentences they were in due time delivered into the custody of the appellant, who was warden of the penitentiary, and entered upon the service of their sentences.
Prior to the expiration of their terms of service on the first count they joined in a petition to the District Court of the United States for the District of Kansas for a writ of habeas corpus to secure their release from imprisonment at the expiration of the sentence imposed on the first count, and to be discharged from any imprisonment imposed on the second count. The warden filed his response, setting forth the facts already disclosed, with exhibits properly authenticating the same. Afterwards, on final hearing, the District Court ordered and adjudged that the petitioners be discharged at the expiration of their terms of imprisonment imposed on the first count of their indictment. From this order the warden appeals.
These are the assignment of errors:
Conceding, for the purpose of this case (as counsel for appellant apparently does), but not deciding it, that the petitions for writ of habeas corpus were not improperly applied for before the expiration of the term of imprisonment imposed on the first count conceded to be lawful, we proceed to a consideration of the question raised by the assignment of errors: Did the sentence for the crime of larceny, as charged in the second count of the indictment, amount to double jeopardy and was it for that reason illegal?
Section 192 reads as follows:
'Whoever shall forcibly break into or attempt to break into any post office, or any building used in whole or in part as a post office, with intent to commit in such post office, or building, or part thereof, so used, any larceny or other depredation, shall be fined not more than one thousand dollars and imprisonment not more than five years.'
Section 47 reads as follows:
'Whoever shall embezzle, steal, or purloin any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, shall be fined not more than five thousand dollars, or imprisoned not more than five years, or both.'
Counsel for appellees contend that the offense of larceny charged in the second count, based on section 47, was only a continuation of the offense of burglary charged in the first count based on section 192; that the two were one continuing offense, and constituted only one crime, for which they could lawfully be punished. cases: Halligan v. Wayne, 102 C.C.A. 410, 179 F. 112; Munson v. McClaughry, 117 C.C.A. 180, 198 F. 72, 42 L.R.A. (N.S.) 302; Stevens v. McClaughry, 125 C.C.A. 102, 207 F. 18, 51 L.R.A. (N.S.) 390; and O'Brien v. McClaughry, 126 C.C.A. 540, 209 F. 816. These cases give countenance to their contention, and upon their authority the learned trial judge made the order appealed from in this case.
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Massey v. United States
... ... a building with intent to steal, and thereupon does steal ... while in the building. Morgan v. Devine, 237 U.S ... 632, 638, 640, 35 Sup.Ct. 712, 59 L.Ed. 1153; Ebeling v ... Morgan, 237 U.S. 625, 630, 35 Sup.Ct. 710, 59 L.Ed ... 1151; Morris v. United States, 229 F. 516, 521, 143 ... C.C.A. 584; Morgan v. Sylvester, 231 F. 886, 888, ... 146 C.C.A. 82; Burton v. United States, 202 U.S ... 344, 377, 26 Sup.Ct. 688, 50 L.Ed. 1057, 6 Ann.Cas. 392. The ... two ... ...
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