Appeal from the District Court of the United States for the District of Kansas, First Division; Richard J. Hopkins, Judge.
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
In April, 1921, the appellant was indicted in two cases, Nos. 2804 and 2805, in the Northern District of Ohio, Western Division. The two indictments grew out of the same transaction.
The indictment in No. 2805 contained eleven counts charging violation of 18 U.S.C.A. § 320, Section 197 of the Penal Code, by assaulting a custodian of the mail.
To each count in this indictment (2805) the defendant pleaded guilty on December 14, 1921, and was sentenced by the court to serve a total of twenty-six years. This sentence has been served and its validity is not before us.
The indictment in No. 2804 contained eleven counts, on which the appellant was tried. He was convicted and sentenced on each of seven counts in the indictment (one, two, there, four, five, eight, and ten), for a period of two years on each count to run consecutively; the sentence on the first count of the indictment to commence at the expiration of the sentences imposed in No. 2805. He was acquitted on three counts of the indictment (six, seven, and nine).
He has now served the sentences imposed on the first count of the indictment (2804) and contends that the seven counts contained in the indictment grew out of the same acts, committed at the same time, and are not distinct and separate offenses; that only one lawful, legal offense can be charged and, therefore, the sentences on the other counts in the indictment are void, and he is entitled to be released from further custody. Schultz v. Biddle, 8 Cir., 19 F.2d 478; Schultz v. Zerbst, Warden, 10 Cir., 73 F.2d 668, but see Colson v. Johnston, D.C., 35 F.Supp. 317.
The issues must be determined on the face of the indictment because the evidence adduced at the trial in No. 2804 is not before us and we must assume here that the proof was sufficient to support all lawful offenses charged in the various counts of the indictment. Fleisher v. United States, 6 Cir., 91 F.2d 404; Watkins v. Zerbst, 10 Cir., 85 F.2d 999, and Rosenhoover v. Hudspeth, 10 Cir., 112 F.2d 667.
The question presented is whether it affirmatively appears from the face of the indictment in No. 2804 that counts one, two, three, four, five, eight and ten charged one and the same conspiracy growing out of one and the same act, or transaction, so that the allegations in the first count of the indictment charge all facts essential to the guilt of the defendant on the remaining counts. Schultz v. Biddle, supra, and Schultz v. Zerbst, supra.
Count one of the indictment in No. 2804 charged that on or about February 10, 1921, petitioner and twenty-one others conspired with each other and divers other persons, "to assult any person having lawful charge, control, or custody of any mail matter of the United States at the time and place that it should thereafter be determined by said defendant to commit the offense herein described, * * * to rob, steal, or purloin such mail matter," in violation of Section 197 of the Penal Code, 18 U.S.C.A. § 320.*fn1
Count two charged a conspiracy on the part of the same defendants, and on the same date, "to rob of mail of the United States, or any part thereof any person having lawful charge, control or custody of such mail matter of the United states at the time and place that it should be thereafter determined by said defendants to commit the offense," in violation of Section 197 of the Penal Code, 18 U.S.C.A. § 320. (See note 1.)
Count three charged a conspiracy on the part of the same defendants, and on the same date, "to steal out of the mail at said city of Toledo, in the County of Lucas, * * * any letters, postal cards, packages, bags or mail that they, the said defendants, should be able so to steal at the time and place thereafter to be determined upon by the said defendants to commit the offense," in violation of Section 194 of the Penal Code, 18 U.S.C.A. § 317.*fn2
Count four charged a conspiracy on the part of the same defendants, and on the same date, "to take any letters, postal cards or packages which had been in a Post Office of the United States * * * then and there and thereby to obstruct the correspondence of others, to-wit, the persons to whom said letters or packages had severally been ...