149 F.2d 844 | 10th Cir. | 1945
This is an appeal from an order discharging a writ of habeas corpus.
An indictment containing two counts was returned against Garrison
Petitioner was arraigned and entered a plea of not guilty as to each count. Thereafter, he was tried and found guilty on count one. On the conviction on count one, petitioner was sentenced to imprisonment for a term of five years and to pay a fine of $1,000. On appeal the judgment was affirmed.
In his application for the writ of habeas corpus, petitioner alleges that the proof adduced at the trial on the indictment wholly failed to establish the conspiracy charged. At the hearing below in the habeas corpus proceeding, petitioner introduced in evidence the bill of exceptions
Questions going to the sufficiency of the evidence to support the charge and the competency of the evidence adduced at the trial are not reviewable on habeas corpus. Where one seeks discharge from confinement after conviction for an offense upon an application for a writ of habeas corpus, the only questions presented are whether petitioner was convicted by a court having jurisdiction of his person and the offense, and whether the sentence pronounced was one within the power of the court. A habeas corpus proceeding cannot be employed as a substitute for an appeal.
In his application for the writ, petitioner alleges that the jury found him guilty on count one and not guilty on count two and that the verdicts are inconsistent. The evidence presented does not clearly show that the jury returned a verdict on count two. We shall assume, however, that it did return a verdict of not guilty on that count. Where a defendant is charged by two or more counts in an indictment, consistency between the verdicts on the 'several counts is not necessary. A verdict of acquittal on one count does not invalidate a verdict of guilty on another count although the same evidence is offered in support of each.
The other grounds alleged for the writ are wholly without merit.
The order appealed from is affirmed.
Hereinafter called petitioner.
See Garrison v. United States, 5 Cir., 135 F.2d 877.
See Garrison v. United States, 320 U.S. 751, 64 S.Ct. 55, 88 L.Ed. 446.
Moore v. Aderhold, 10 Cir., 108 F.2d 729, 732; Garrison v. Hudspeth, 10 Cir., 108 F.2d 733; Norton v. Zerbst, 10 Cir., 83 F.2d 677, 678; Watkins v. Zerbst, 10 Cir., 85 F.2d 999, 1000; Reger v. Hudspeth, 10 Cir., 103 F.2d 825, 827.
See Garrison v. United States, 5 Cir., 135 F.2d 877, 878.
Holbrook v. Hunter, 10 Cir., 149 F.2d 230; United States v. Oppenheimer, 242 U.S. 85, 87, 37 S.Ct 68, 61 L.Ed. 161, 3 L.R.A. 516; Collins v. Loisel, 262 U. S. 426, 430, 43 S.Ct. 618, 67 L.Ed. 1062; Chitwood v. United States, 8 Cir., 178 F. 442, 443, 444; United States v. McConnell, D.C.Pa., 10 F.2d 977, 979, 980; United States v. Morse, D.C.N.Y., 24 F.2d 1001; United States v. Dockery, D.C.N.Y., 49 F.Supp. 907, 908.
Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356, 80 A.L.R. 161; Thomas v. Hudspeth, 10 Cir., 127 F.2d 976, 978; Yep v. United States, 10 Cir., 81 F.2d 637, 639; Long v. United States, 9 Cir., 90 F.2d 482, 484.