This is an appeal from an order which denied the petition of Charles. A. Stevens, alias Charles Savage, for a writ of habeas corpus and a release from the United States penitentiary at Peavenworth, Kan. Pie was indicted, convicted, and sentenced, under the first two counts of an indictment, to imprisonment for five 3’ears under section 5469 of the Revised Statutes (U. S. Comp. St. 1901, p. 3692), for feloniously taking, stealing, and carrying away on June 6, 1908, “from and out of a certain United States mail car lying and being upon a side track at the union depot transfer station for United States mails at Kansas City, Jackson county, Mo., and then and there being the duly authorized depository for registered mail matter, a certain letter pouch containing registered mail, * * * from Los Angeles, Cal., to New York, N. Y., which said pouch contained large quantities of registered mail matter, from United States post office at Los Angeles, Cal., and intended for delivery at United States post office at New York City, N. Y.,” and 108 letters and packages which had been lately deposited in the United States mails for mailing and delivery. At the same trial he was convicted and sentenced to an imprisonment for five years more, under section 5469 of the Revised Statutes, under four counts o f the same indictment, for feloniously taking, stealing, and carrying away on June 6, 1908, “from and out of a certain United States mail car lying and being upon a side track at the union depot transfer station for United States mails at Kansas City, Mo., and then and there being a duly authorized depository for registered letters, certain mail matter,” to wit, four registered letters numbered 96,419, 96,420, 96,421, and 96,422, and feloniously embezzling and converting to his own use the contents thereof. Each of these four letters was thus described ill the indictment:
“A certain letter wbicli bad theretofore been deposited in Ihe United Slates post office in Los Angeles, Cal., for mailing and delivery, to wit, registered*20 letter No. 96,419 (or one of the other numbers), of the United States post office at Los Angeles, Cal., mailed and deposited in said post office by the Farmers’ & Merchants’ National Bank of Los Angeles, Cal., and intended to be conveyed by mail and addressed to and intended for the Importers’ & Traders’ National Bank of New York City, N. Y., which said letter then and there contained”
■—-$12,500 lawful money of the United States.
The principle upon which the decisions in these cases rests is that two or more separate offenses which are committed at the same time and are parts of a single continuing criminal act, inspired by the same criminal intent which is essential to each offense, are susceptible to but one punishment. The most familiar illustration of the rule is that burglary with intent to commit larceny and larceny committed at the same time and as one continued act do not subject the perpetrator to two punishments, one for the burglary and another for the larceny, because the same criminal intent is indispensable to each, and they are each parts of a continuing criminal act. In order to take this case out from under this principle, counsel for the government argue that section 5469 denounces several separate offenses, two of which are: ■ (1) Stealing the mail, or any letter or packet Lom any authorized depository for mail matter; and (2) talcing the mail, or any letter or packet, which contains an article of value, from any authorized depository for mail matter, opening and embezzling the contents thereof; that the intent to embezzle is not essential to the former, but is indispensable to the latter offense; that the two offenses are therefore separate. Let all this be conceded. Nevertheless, in the case at bar, the pleader alleged the stealing of the letters in the third, fourth, fifth, and sixth counts of the indictment' in the same words in which he alleged the stealing of the letter pouch and the -letters in the first and second counts. He averred that the defendant “did unlawfully, and feloniously take, steal, and carry away from and out of a certain United States mail car” the letters whose contents he also
Counsel call attention to the conceded rule that charges of separate offenses of the same class may be joined in separate counts in the same indictment. But this rule and the practice under it does not detract from the soundness or effect of the principle that two or more separate offenses which are committed at the same time and are parts of a continuing criminal act inspired by the same indispensable felonious intent are susceptible of but one punishment. The two offenses in Munson v. McClaughry, 198 Fed. 72, 117 C. C. A. 180, 42 L. R. A. (N. S.) 302, were charged in separate counts of the same indictment, and the situation was the same in Halligan v. Wayne, 179 Fed. 112, 102 C. C. A. 410.
Finally it is said that the record fails to prove that the stealing and carrying away charged in the third, fourth, fifth, and sixth counts of the four registered letters, and the conversion of their contents, was a part of the same continuing act as the stealing and carrying away of the mail pouch and the 108 letters charged in the first and second counts. Bet us see. The record is that the defendant was tried and convicted under each of these counts; hence that the charges they contain are truc. The first count charges that on June 6, 1908, the defendant, at Kansas City, Mo., took, stole, and carried away—
‘■from and out of a certain United States mail car lying and being upon a. side track at tlie union depot transfer station for the United States mails at Kansas City, Jackson county, Mo., and then and there being the duly authorized depository for registered mail matter, certain United States mail, to wit, a certain letter pouch containing registered mail, the lock on said pouch being number 2,424, rotary number 311, from Los Angeles, Cal., to New York, N. Y., which said pouch then and there contained large quantities of registered mail matter from United States post office at Los Angeles, Cal., and intended for delivery at United States post office at New York City, N. Y.”
Each of the third, fourth, fifth, and sixth counts charged that the defendant on June 6, 1908, at the same time that he took the mail pouch, at Kansas City, Mo., at the same place that he took the mail pouch, feloniously took, stole, and carried away a registered letter “from and out of a certain United States mail car lying and being upon
Since this case was argued and submitted, however, the Supreme Court has handed down, on May 26, 1913, its opinion in the Matter of the Petitions of Spencer, Scholl, and Moyer, 228 U. S. 652, 33
We return to the cases of Spencer and others. The opinion in that case sets forth the facts that by writ of error to the Superior Court of Pennsylvania and by petition to the Supreme Court of that state the petitioners had challenged the sentence of which they complain, and had not in either case raised, as they might have done, the issue that it was based on an ex post facto law; that they had applied to the United States District Court for a writ of habeas corpus on that ground, and their application had been denied; that their sentence was in any event valid for six months of their terms, and those six months had not expired, and after reciting all these facts it reviewed-the opinion in Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872, where a prisoner was relieved of a void sentence by writ of habeas corpus from the Supreme Court, and distinguished the cases of Spencer and others from that case on the ground that their sentences were erroneous but.
The judgment in the case at bar was rendered by a national court, and the cogent reasons against interference by the federal courts with the administration of justice in the state courts are inapplicable here. Ex parte Royall, 117 U. S. 254, 6 Sup. Ct. 742, 29 L. Ed. 872; In re Dowd (C. C.) 133 Fed. 747, 754; In re Lincoln, 202 U. S. 178, 182, 26 Sup. Ct. 602, 50 L. Ed. 984. While it is a conceded rule that a writ of habeas corpus may not be used as a mere writ of error, it has been an established principle of our national jurisprudence for many years that one restrained of liis liberty by virtue of a judgment or order of a court which that court had no jurisdiction to make might be released by the writ of habeas corpus, whether such a release could have been secured by writ of error or not. Ex parte Lange, 18 Wall. 163, 169, 173, 21 L. Ed. 872; Ex parte Heff, 197 U. S. 488, 508, 509, 25 Sup. Ct. 506, 49 L. Ed. 848; Ex parte Bridges, 4 Fed. Cas. 98, 104; Ex parte Wilson, 114 U. S. 417, 422, 429, 5 Sup. Ct. 935, 29 L. Ed. 89; In re Snow, 120 U. S. 274, 285, 7 Sup. Ct. 556, 30 L. Ed. 658; Ex parte Bain, 121 U. S. 1, 13, 14, 7 Sup. Ct. 781, 30 L. Ed.
On the other hand, the case at bar is one in which the trial court had jurisdiction to sentence the petitioner, for all the offenses with which he was charged to an imprisonment for five years and no longer. It imposed that sentence, thereby exhausting its power to sentence him to imprisonment, and, then without jurisdiction sentenced him to an imprisonment for another five years. The second sentence alone is challenged; no part of it is valid; he did not seek to reverse it by writ of error, and his time to apply for such a writ has expired. Is he barred from all relief? In Ex parte Lange, 18 Wall. 163, 169, 173 [21 L. Ed. 872], the petitioner had been tried, convicted, and sentenced for an offense for which he was liable to the alternative punishment of fine or imprisonment. The court imposed both. He paid the fine, and made application to the same court by writ of habeas corpus for release on the ground that he was then entitled to a discharge. The circuit court set aside its judgment and sentenced him to-imprisonment only. He then applied to the Supreme Court by writ of habeas, corpus for his release. Mr. Justice Miller delivered the opinion of the court and, among other things, he said:
“If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense. And though there have been nice questions in the application of this rule to cases, in which the act charged was such as to come within the definition of more than one statutory offense, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offense. * * * But it has been said that, conceding all this, the judgment under which the prisoner is now held is erroneous, but not void; and as this court, cannot review that judgment for error, it can discharge the prisoner only when it is void. But we do not concede the major premise in this argument. A judgment may be erroneous and not void, and it may be erroneous because it is void. The distinctions between void and merely voidable judgments, are very.nice, and they may fall under the one class or the other as they are regarded for different purposes. We are of opinion that when the prisoner, as in this case, by reason of a valid judgment, had fully suffered one of the alternative punishments to which alone the law subjected him, the-power of the court to punish further was gone; that the principle we have discussed then interposed its shield, and forbid that he should be punished again for that offense. The record of the court’s proceedings, at the moment*27 the second sentence was rendered, showed that in that very case, and for that very offense, the prisoner had fully performed, completed, and endured one of the alternative punishments which the law prescribed for that offense, and had suffered live days’ imprisonment on account of the other. It thus showed the court that its power to punish for that offense was at an end. Unless the whole doctrine of our system of jurisprudence, both of the Constitution and the common law, for the protection of personal rights in that regard, are a nullity, the authority of the court to punish the prisoner was gone. The power was exhausted; its further exercise was prohibited. It was error, but it, was error because the power to render any further judgment did not exist.”
And the court discharged the prisoner.
In re Bridges, 4 Fed. Cas. 98, 105, No. 1862, the petitioner had been tried, convicted, and sentenced for perjury by a state court without jurisdiction of the subject-matter. He prayed a writ of habeas corpus and a discharge. Mr. Justice Bradley said:
“It is contended, however, that where a defendant has been regularly indicted. tried, and convicted in a state court, his only remedy is to carry the judgment to the Court of last resort, and thence by writ of error to the Supreme Court of the United States, and that it is too late for a habeas corpus to issue from a federal court in such a case. This might, be so if the proceeding in the state court, were merely erroneous; but where it is void for want of jurisdiction, habeas corpus will lie, and may he issued by any court or judge invested with supervisory jurisdiction in such case.”
In Ex parte Wilson, 114 U. S. 417, 422, 429, 5 Sup. Ct. 935, 29 L. Ed. 89, a prisoner, convicted and sentenced to imprisonment at hard i altor on a trial upon an information, sought release by writ of habeas corpus because lie had never been indicted or presented by the grand jury, and the Supreme Court granted his release although the question raised by the petition had not been urged at the trial.
In Ex parte Bain, 121 U. S. 1, 13, 14, 7 Sup. Ct. 781, 30 L. Ed. 849, the prisoner had been tried, convicted, and sentenced to imprisonment on an indictment which the court had amended before the trial. He prayed a writ of habeas corpus and a discharge. The Supreme Court held that the trial court lost its power to try him by the amendment and discharged him.
In re Snow, 120 U. S. 274, 285, 7 Sup. Ct. 556, 30 L. Ed. 658, section 3 of the Acts of Congress of March 22, 1882, c. 47, 22 Stat. 31, provided that if any male person in a territory of the United States should cohabit with more than one woman, he should, on conviction thereof, be punished by a fine of not more than $300, or by imprisonment for not more than six months, or by both said punishments. On December 5, 1885, three indictments were found against Snow, the first for continuously living and cohabiting with seven women named as his wives, between December 31, 1882, and December 31, 1883, the second for continuously claiming, living and cohabiting with the same women as his wives between January 1, 1884, and December 1, 1884. and the third for continuously living and cohabiting with the same women between the first day of January, 1885, and the first day of December, 1885. There was a separate trial and conviction on eacli indictment. After the verdicts had been rendered, the court sentenced Snow on the same day to pay a fine of $300 and to imprison
“Not only had the court which tried them no jurisdiction to inflict a punishment in respect of more than one of the convictions, but, as the want of jurisdiction appears on the face of the judgment, the objection may he taken on habeas corpus, when the sentence on more than one of the convictions is sought to be enforced”
—reversed the court below and ordered the issue of the writ.
In Hans Nielsen, Petitioner, 131 U. S. 176, 182, 190, 9 Sup. Ct. 672, 674 (33 L. Ed. 118), another case with parallel facts is reported. To the objection that the validity of the second sentence could not be assailed by writ of habeas corpus, Mr. Justice Bradley replied:
“It is firmly established that if the court which renders a judgment has-not jurisdiction to render it, -either because the proceedings, or the law under which they are taken, are.unconstitutional, or for any other'reason, the judgment is void and may be questioned collaterally, and a defendant who is imprisoned under and by virtue of it may be discharged from custody on habeas corpus. * * * It was laid down by this court In re Coy, 127 U. S. 731, 758 [8 Sup. Ct. 1263, 1272, 32 L. Ed. 274], that the power of Congress-to pass a statute undei which a prisoner is held in custody may be inquired into under a writ of'habeas-corpus as affecting the jurisdiction of the court which ordered his imprisonment; and the court, speaking by Mr. Justice Miller, adds: ‘And if their want of power appears on the face of the record of his condemnation, whether in the indictment or elsewhere, the court which has authority to issue the writ is bound to release him.’ * * * It is difficult to see why a conviction and punishment under an unconstitutional law is more violative of a person’s constitutional rights than an unconstitutional conviction and punishment under a valid law. In the first case, it is true, the court has no authority to take cognizance of the case; but, in the other, it has no authority to render judgment against the defendant. This was the case in Ex parte Lange, where the court had authority to hear and determine the case, but we held that it had no authority to give the judgment it did. It was the same in the case of Bnow: The court had authority over the case, but we held that it had no authority to give judgment against the prisoner. He was protected by a constitutional provision, securing to him a fundamental right. It was not a case of mere error in law, but a case of denying to a person a constitutional right. And where such a case appears on the record, the party is entitled to be discharged from imprisonment.”