Myers v. Morgan

• Decision Date: 22 June 1915
• Docket Number: 4362.
• Citation: 224 F. 413
• Parties: MYERS v. MORGAN.
• Court: U.S. Court of Appeals — Eighth Circuit

224 F. 413

MYERS v. MORGAN.

No. 4362.

United States Court of Appeals, Eighth Circuit.

June 22, 1915

Turner W. Bell, of Leavenworth, Kan., for appellant.

L. S Harvey, Asst. U.S. Atty., of Kansas City, Kan. (Fred Robertson, U.S. Atty., and Francis M. Brady, Asst. U.S Atty., both of Topeka, Kan., on the brief), for appellee.

Before SANBORN and CARLAND, Circuit Judges, and TRIEBER, District judge.

TRIEBER District Judge.

This is a petition for a writ of habeas corpus to release the petitioner from imprisonment in the United States penitentiary at Leavenworth, Kan. The petition having been denied, this appeal is prosecuted.

There are two grounds upon which the appellant relies: (1) That the sentence is beyond the maximum prescribed by the statute, and is therefore a nullity; (2) that the sentence of the court fails to specify the place of confinement.

The defendant was indicted in the Supreme Court for the District of Columbia for a violation of the Mann Act, commonly called the 'White Slave Act.' Act June 25, 1910, c. 395, 36 Stat. 825. There were two counts in the indictment, charging the defendant with having induced and coerced a woman named Rose M. Keefer to go from one place to another in interstate commerce; that is to say, from the city of York, in the state of Pennsylvania, to the city of Washington, in the District of Columbia, for the purpose of engaging in the practice of prostitution and debauchery in the said city of Washington. The same woman is referred to in both counts. Having been found guilty by the verdict of a jury on both counts, the sentence of the court was:

'That for his offense the said defendant be imprisoned in the penitentiary (as designated by the Attorney General of the United States) for the period of ten years, to take effect from and including this date.'

The maximum punishment provided in the act for one offense is five years' confinement. In pursuance of the designation made by the Attorney General of the United States, the defendant was incarcerated in the United States penitentiary at Leavenworth, Kan. It is now claimed that, appellant having served the full period of the maximum punishment provided for one offense, less the commutation allowed by law for good behavior, he is now entitled to his discharge.

The principal case upon which counsel for appellant relies is In re Snow, 120 U.S. 274, 7 Sup.Ct. 556, 30 L.Ed. 658; but in our opinion that case is inapplicable to the issues in this case. The indictment there charged, in several counts, illegal cohabitation with more than one woman, in violation of section 3 of the act of Congress of March 22, 1882 (22 Stat. 31, c. 47), and it was held, as that was a continuing offense, the different counts only charged one offense, and for that reason the court was without jurisdiction to impose a punishment in excess of the maximum provided by the statute for one offense. The court there said:

'A distinction is laid down in adjudged cases, and by text-writers, between an offense continuous in its character, like the one at bar, and a case where the statute is aimed at an offense that can be committed uno actu.' 120 U.S. 286, 7 Sup.Ct. 562 (30 L.Ed. 658).

See Ebeling v. Morgan, 237 U.S. 625, 35 Sup.Ct. 710, 59 L.Ed. . . ..

In the instant case the defendant was charged with, and convicted of, two separate offenses committed more than six months apart. So far as the record in this case shows, we are unable to know whether at the trial it was not shown that the woman after having been taken to Washington the first time for the purpose of prostitution, did not escape from the house of prostitution, and then, six months later, was again transported by the defendant for the same purpose. The first count in the indictment charges the offense to have been committed in...