Phillips v. Biddle
| Decision Date | 07 October 1926 |
| Docket Number | No. 7183.,7183. |
| Citation | 15 F.2d 40 |
| Parties | PHILLIPS v. BIDDLE, Warden, etc. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Frans E. Lindquist, of Kansas City, Mo., for appellant.
Al. F. Williams, U. S. Atty., and Alton H. Skinner and John N. Free, Asst. U. S. Attys., all of Topeka, Kan., for appellee.
Before STONE, KENYON, and BOOTH, Circuit Judges.
This is an appeal from an order sustaining a motion to dismiss a petition for habeas corpus and to deny the writ.
The only questions involved relate to the sentences imposed. The indictment was in 11 counts. Each of the first 10 counts was for the theft of a different mail bag from the Chicago & Council Bluffs railway post office at Council Bluffs on November 13, 1920. Count 11 was for the theft of the contents of the above 10 mail bags. Appellant pleaded guilty and the sentence was for 7 years on each of the first 10 counts, to be served concurrently, and a sentence of 5 years under count 11, "making 12 years imprisonment in all."
Appellant contends that the sentences on the first 10 counts are excessive beyond the 3-year maximum authorized by section 190 of the Penal Code (Comp. St. § 10360) and that the sentence on count 11 must be construed as concurrent with the other sentences. As he began sentence in March, 1921, he contends that, with allowances for good behavior, he was entitled to his release when his petition was filed in the district court, January 29, 1925.
I. The first 10 counts of the indictment are under section 190 of the Penal Code and not under section 35, as amended (Comp. St. § 10199), as contended by the government. While section 35 might, under its very general terms, cover the theft of any property belonging to the government and while the mail bag is such character of property, yet section 190 deals specifically with the theft of mail bags or property in use by or belonging to the Post Office Department. Therefore, the contention of appellant is correct that the court had no authority to sentence him on any one of these counts for a longer term than 3 years.
In this connection, the appellant contends that only the excess of the sentence is illegal. In a sense this is true and would be controlling were there but one count in the indictment. However, there is no presumption that the court would have made this maximum sentence on each count to run concurrently had he been apprised, at the time of sentence, that the maximum was but 3 years. On the contrary, the sentence makes it very clear that the court...
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...supplied). 13 Two cases which reach the opposite conclusion, Kitt v. United States, 138 F. 2d 842 (4th Cir. 1943) and Phillips v. Biddle, 15 F.2d 40 (8th Cir. 1926), do not mention Ex parte Lange, and we find their reasoning 14 Since a general sentence is not prorated among the various coun......
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U.S. v. Henry, s. 81-4107
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McClain v. United States, 79 Civ. 2438.
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McClain v. U.S.
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