Morrison v. White, 105.
| Decision Date | 29 July 1929 |
| Docket Number | No. 105.,105. |
| Citation | 34 F.2d 244 |
| Parties | MORRISON v. WHITE, Warden. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Frans E. Lindquist, of Kansas City, Mo., for appellant.
Al. F. Williams, U. S. Atty., and L. E. Wyman, Asst. U. S. Atty., both of Topeka, Kan., for appellee.
Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.
On March 14, 1925, the petitioner, Frank Morrison, was tried and convicted upon an indictment containing three counts, the first charging a violation of section 192 of the Penal Code (U. S. C. title 18, § 315 18 USCA § 315), the second charging a violation of section 46 of the Penal Code (U. S. C. title 18, § 99 18 USCA § 99), and the third charging a violation of section 190 of the Penal Code (U. S. C. title 18, § 313 18 USCA § 313).
Section 46, supra, reads as follows:
"Whoever shall rob another of any kind or description of personal property belonging to the United States, or shall feloniously take and carry away the same, shall be fined not more than $5,000, or imprisoned not more than ten years, or both."
Section 190, supra, reads as follows:
"Whoever shall steal, purloin, or embezzle any mail bag or other property in use by or belonging to the Post Office Department, or shall appropriate any such property to his own or any other than its proper use, or shall convey away any such property to the hindrance or detriment of the public service, shall be fined not more than $200, or imprisoned not more than three years, or both."
The court sentenced petitioner to confinement in the penitentiary at Leavenworth, Kan., for a period of five years on the first count and ten years on the second count, the latter sentence to commence at the expiration of the sentence on the first count. No sentence was imposed on the conviction on the third count.
The charging part of the second count of the indictment reads, in part, as follows:
"That on * * * the 7th day of January, A. D. 1924, * * * in the * * * District of North Dakota, * * * Frank Morrison * * * did then and there wilfully, unlawfully and feloniously, take, steal and carry away from a building in Garrison, * * * North Dakota, then and there used in part as a post office building by the United States * * * certain personal property which then and there belonged to the United States, to-wit: Certain postage stamps of the United States, United States stamped envelopes and United States postal cards * * * and certain money of the value of $285.39. * * *"
In his petition for habeas corpus, the petitioner sets up that section 46 of the Penal Code, in so far as it makes larceny of property of the United States an offense, was repealed by section 190 of the Penal Code; that the second count of the indictment was in fact predicated upon section 190 of the Penal Code; that three years is the maximum sentence which could have been lawfully imposed upon him under section 190 of the Penal Code; that eight years is the maximum sentence which could have been lawfully imposed upon him for the violation of counts one and two of the indictment; that he has served one-third of the valid portion of the...
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Conerly v. United States
...117." Robinson v. United States, 142 F.2d 431, 432 (8th Cir. 1944). Robinson v. United States, supra, disapproved of Morrison v. White, 34 F.2d 244 (10 Cir. 1929) and Dockter v. White, 25 F.2d 74 (8th Cir. 1928) and relied instead upon Phillips v. Biddle, 15 F.2d 40 (8th Cir. 1926), cert. d......
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Robinson v. United States, 12789.
...stolen, but to the offense of larceny generally. The particular is entitled to preference over the general statute." In Morrison v. White, 10 Cir., 34 F.2d 244 (transferred from the old 8th circuit), the petition for habeas corpus presented that petitioner had been convicted of forcibly ent......
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Sullivan v. United States, 13050.
...compare Jolly v. United States, 170 U.S. 402, 407-408, 18 S.Ct. 624, 42 L.Ed. 1085; Dockter v. White, 8 Cir., 25 F.2d 74; Morrison v. White, 10 Cir., 34 F.2d 244. The order appealed from is 1 § 82, 18 U.S.C.A.: "Whoever shall take and carry away or take for his use, or for the use of anothe......