195 F. 924 | 8th Cir. | 1912
Callahan was indicted in the United States District Court for the District of Kansas for unlawfully and feloniously receiving and retaining in his possession with intent to convert to his own use and gain certain postage stamps described in the indictment; the said postage stamps having been theretofore unlawfully and feloniously stolen from the post office of the United States at Hope, in the county of Dickinson, state of Kansas; he, the said Callahan, knowing that said postage stamps had been so feloniously stolen as aforesaid. When his case was called for trial, Callahan interposed what his attorney called a plea in bar, which was in the following language:
“Now comes the defendant, John Callahan, and slates: That at the January term, 1910, in the district court in and for Sumner county. Kansas, he was convicted of the crime of burglary, and that during said term he was sentenced to the penitentiary of the state of Kansas by the said district court of Sunmer county, Kansas, for a term of not less than five years and not to exceed ten years; that thereafter he, appealed from said conviction and sentence lo the Supreme Court of the state of Kansas, and that on the 5th day of November, 1910, being a day of the July term, 1910 of the said Supreme Court of the state of Kansas, said conviction and -v twice was affirmed; that ever since said conviction and affirmation of said sentence by the Supreme Court as aforesaid, the said defendant, John Callahan, has been in the custody and possession of the state of Kansas, and that he is now for all purposes serving his sentence as imposed upon him by the said district court- of Sumner county, Kansas. Wherefore the said defendant, John Callahan, prays that his case may be postponed or continued until such time as the state of I-Cansas shall release or discharge him.”
The so-called plea was overruled by the trial court as insufficient, to i rhich ruling the defendant duly excepted The prayer of the so-called -ilea in bar shows that it was for, all practical purposes a motion for a continuance. Callahan also made a motion for a continuance based on the same-grounds, which was overruled by the court and an exception taken. A plea of not guilty was afterwards entered by the defendant, and after trial upon this plea he was convicted of the crime charged and afterwards sentenced upon said conviction. Callahan now brings the judgment of conviction here by writ of error.
“Where a state court and a court of the United States may each take jurisdiction, the tribunal which first gets it holds it to the exclusion of the other, until its duty is fully performed and the jurisdiction invoked is exhausted; and this rule applies alike in both civil and criminal cases. It is, indeed, a principle of universal jurisprudence that where jurisdiction has attached to person or thing, it is—unless there is some provision to the contrary—exclusive in effect until it has wrought its function.” Hagan v. Lucas, 10 Pet. 400, 9 L. Ed. 470; Taylor v. Carryl, 20 How. 584, 15 L. Ed. 1028; Troutman’s Case, 24 N. J. Law, 634; Ex parte Jenkins & Crosson, 2 Am. Law Reg. 144, Fed. Cas. No. 7,259. See, also, Covell v. Heyman, 111 U S. 176, 4 Sup. Ct. 355, 28 L. Ed. 390; In re Fox (D. C.) 51 Fed. 427; Mackin v. People (Ill.) 8 N. E. 178; U. S. v. French, 1 Gall. 1, Fed. Cas. No. 15,165; Ex parte Robinson, 6 McLean, 355, Fed. Cas. No. 11,935.
Judgment affirmed.