United States v. Carpenter

• Decision Date: 04 February 1907
• Docket Number: 1,338.
• Citation: 151 F. 214
• Parties: UNITED STATES et al. v. CARPENTER.
• Court: U.S. Court of Appeals — Ninth Circuit

151 F. 214

UNITED STATES et al. v. CARPENTER.

No. 1,338.

United States Court of Appeals, Ninth Circuit.

February 4, 1907

Potter Charles Sullivan, Walter Christian, and Charles T. Hutson for appellants.

Andrew R. Black, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

Hugh Carpenter, who was in the custody of the appellant in the United States penitentiary on McNeill's Island, filed his petition in the court below for a writ of habeas corpus alleging that he was unlawfully imprisoned. Upon the hearing the court allowed the writ and adjudged that the petitioner be discharged. From that judgment the present appeal is taken.

The petitioner and two others were indicted in the District Court of the United States for the District of Oregon for violation of section 5463 of the Revised Statutes, as amended by Act June 18, 1888, c. 394, Sec. 2, 25 Stat. 187 (U.S. Comp. St. p. 3689). The indictment contained four counts. The first count charged the alteration of a certain money order on November 28, 1903; the second count charged the utterance of that order; the third count charged the alteration of a certain other money order on November 28, 1903; and the fourth count charged its utterance. The petitioner pleaded guilty, and was thereupon sentenced upon the first three counts to be imprisoned 'at hard labor for the term of two years for the offense charged in the first count of said indictment, and for a further term of two years thereafter for the offense charged in the second count of said indictment, and for the further term of two years thereafter for the offense charged in the third count of said indictment, ' and that he be committed until his sentence be performed or until he be discharged according to law. It was held in the court below that the first and second counts charged but one crime, and that the imposition of a second sentence of two years' imprisonment on the second count was void; that, the time of imprisonment on the first count having expired and the time which by the sentence should intervene between the termination of the first term of imprisonment and the commencement of the second not having elapsed, the present imprisonment of the petitioner is not in execution of the sentence.

Section 5463, as amended, provides:

'That any person who shall, with intent to defraud, falsely forge or counterfeit the signature of any postmaster, assistant postmaster, chief clerk, or clerk upon or to any money order or postal note, or blank therefor provided or issued by or under the direction of the Post-Office Department of the United States, or of any foreign country, and payable in the United States, or any material signature or indorsement thereon, or any material signature to any receipt or certificate of identification thereon; any person who shall falsely alter, or cause or procure to be falsely altered in any material respect, or knowingly aid or assist in falsely so altering any such money order or postal note; any person who shall, with intent to defraud, pass, utter, or publish any such forged or altered money order or postal note knowing any material signature or indorsement thereon to be false, forged, or counterfeited, or any material alteration therein to have been falsely made, * * * shall, upon conviction, be punishable by fine of not more than five thousand dollars, or by imprisonment at hard labor for not less than one year and not more than five years.'

If this section were before us for construction, unaffected by precedent, we should...