Stuart W. Dubois, and v. Carl G. Hocker, Warden, Nevada State Prison

432 F.2d 549, 1970 U.S. App. LEXIS 8337

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 6, 1970
• Docket: 24201
• Status: Published

Opinion

PER CURIAM :

The order denying habeas corpus relief is affirmed.

On a Reno municipal prosecution DuBois pleaded guilty to charges under city ordinances for:

1. Carrying a concealed weapon;

2. Discharging a firearm in a public place;

3. Gross intoxication.

While serving the city sentence, he was charged and convicted under a Nevada statute as an ex-felon in possession of firearms. The charges all grew out of the same incident.

DuBois has attempted habeas corpus in the state court and lost. Thus, he has sought relief on the federal side.

We reject the contention of double jeopardy, although all charges were the same in time and the gun was common to all of them.

Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), precludes prosecution by a state and a municipality of the same offense. But the offenses were not identical. He still could have been guilty of the state offense without being guilty of any of the three municipal offenses. That is one fair working test.

Other points we find without merit.