No. 10150 | 9th Cir. | Sep 21, 1942
Appellant’s attempt to free himself from the penitentiary in which he is confined was unsuccessful in the court below, and he renews his attempt by this appeal.
His petition for a writ of habeas corpus with the answer thereto disclose the following undisputed facts: On September 22, 1937, appellant was indicted in a first count charging that he did, unlawfully, “make and cause and procure to be made, and willingly aid and assist in making three sets of plaster of paris molds * * * for the making and counterfeiting of Fifty Cent (50¡í) coins”. A second count in the indictment charged that appellant did,
The indictment charges violations of 18 U.S.C.A. § 283, which provides in part: “Whoever * * * shall make, or cause or procure to be made * * * any * * * mold * * * of * * * plaster * * * in likeness or similitude, as to the design or the inscription thereon, of any * * * mold designated for the coining or making of any of the genuine * * * silver * * * coins of the United States * * * ; or whoever * * * shall have in his possession any such * * * mold * * * shall be fined not more than $5,-000 and imprisoned not more than ten years”. Appellant contends that the two counts of the indictment charge but a single offense because the statute, properly construed, does not make “possession” of a mold an offense distinct from “manufacture” of such mold, and because the making or manufacturing of the counterfeit molds would necessarily include their possession.
These contentions cannot be upheld. Under the statute, the manufacture of the mold is one offense, and the possession of such mold is another. Kaye v. United States, 7 Cir., 177 F. 147" court="7th Cir." date_filed="1910-01-05" href="https://app.midpage.ai/document/kaye-v-united-states-8774451?utm_source=webapp" opinion_id="8774451">177 F. 147. Compare: Matthews v. Swope, 9 Cir., 111 F.2d 697" court="9th Cir." date_filed="1940-04-30" href="https://app.midpage.ai/document/matthews-v-swope-6880481?utm_source=webapp" opinion_id="6880481">111 F.2d 697; Albrecht v. United States, 273 U.S. 1" court="SCOTUS" date_filed="1927-01-03" href="https://app.midpage.ai/document/albrecht-v-united-states-100977?utm_source=webapp" opinion_id="100977">273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505; Remaley v. Swope, 9 Cir., 100 F.2d 31" court="9th Cir." date_filed="1938-11-21" href="https://app.midpage.ai/document/remaley-v-swope-6875390?utm_source=webapp" opinion_id="6875390">100 F.2d 31. There is no contrary authority on the point. Since the statute describes two separate offenses, since the indictment charged both, and since appellant plead guilty to both, it was entirely proper for the court to sentence him on each count.
Affirmed.