Telfian v. Sanford, 147 F.2d 945

Telfian v. Sanford

147 F.2d 945 | 5th Cir. | 1945

HOLMES, Circuit Judge.

This appeal is from a judgment discharging appellant’s writ of habeas corpus and remanding him to the custody of appellee.

Appellant was tried upon an indictment in four counts, but only the first two are of importance here. The first count charged that appellant had assaulted a person having custody of mail matter, in violation of Sec. 197 of the Criminal Code.1 2The second count charged that appellant had assaulted a person having custody of mail matter and had put his life in jeopardy by the use of a dangerous weapon, in violation of the same statute. The jury returned a .verdict of not guilty on the first count; of guilty on the second; and appellant is now in custody under the 25-year sentence imposed on the second count.

The only question raised is whether, since the offense described in the second count but charged the commission of the first offense under aggravated circumstances,2 the conviction under the second count was necessarily inconsistent with the acquittal under the first and the court was without jurisdiction to impose any sentence. This issue has been settled against appellant by decisions of the Supreme Court in Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356, 80 A.L.R. 161, and Borum v. United States, 284 U.S. 596, 52 S.Ct. 205, 76 L.Ed. 513.

Affirmed.

18 U.S.C.A. § 320.

Cf. Wells v. United States, 5 Cir., 124 F.2d 334; Dimenza v. Johnston, 9 Cir., 130 F.2d 4G5.