Telfian v. Sanford

Fifth Circuit

Telfian v. Sanford

147 F.2d 945, 1945 U.S. App. LEXIS 2214

CourtCourt of Appeals for the Fifth Circuit

DecidedMarch 9, 1945

DocketNo. 11197

StatusPublished

Cited by1 cases

This text of 147 F.2d 945 (Telfian v. Sanford) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Telfian v. Sanford, 147 F.2d 945, 1945 U.S. App. LEXIS 2214 (5th Cir. 1945).

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Opinion

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.

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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.

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Bluebook (online)

147 F.2d 945, 1945 U.S. App. LEXIS 2214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/telfian-v-sanford-ca5-1945.

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