EDELSTEIN, District Judge.
This is an application for a writ of habeas corpus on the grounds that the applicant is being held in custody in vio lation of the Constitution of the United States. 28 U.S.C. § 2241(c) (3) (1959).
[15]*15The applicant was tried in the New York County Court of General Sessions, now the Supreme Court, New York County, on a four-count indictment.1 Counts two and four, both alleging the crime of criminally concealing and withholding stolen and wrongfully acquired property (diamonds), were submitted to the jury. Count two, insofar as it is relevant, charged that the defendant:
“in the County of New York, between on or about [sic] May 29,1959 and on or about May SO, 1959 concealed * * * certain property, having an aggregate value in excess of $100,000, to wit, a quantity of diamonds. * * * ”
and count four charged, in part, that the defendant:
“in the County of New York, on or about May 29, 1959 concealed * * certain property, having an aggregate value in excess of $500.00, to wit, a quantity of diamonds. * * ”
The jury found the applicant innocent on the second count and guilty on the fourth count. He alleges in substance that: (1) he was tried in New York County for a crime occurring in Queens County in violation of the Sixth Amendment to the Constitution; (2) he was exposed to double jeopardy in violation of the Fifth Amendment to the Constitution in that one of the two counts of the indictment [16]*16submitted to the jury was completely contained within the other count; and implicitly (3) that the indictment and judge’s charge were so ambiguous that the resulting confusion of the jury (as demonstrated by the questions they asked of the judge) denied petitioner due process of law.
Petitioner’s first contention is without merit. The uncontradicted testimony showed that all of the gems originated from the same holdup. Applicant acted as a middleman and took possession of some of the stolen gems on May 29, 1964 (in New York County) and took possession of the balance of the gems that night and the following day in Queens County. Since part of the crime alleged in the second count occurred in New York County and the remainder occurred in Queens County, venue for such a continuing offense would have been constitutionally proper in either county. See, e. g., United States v. Cores, 356 U.S. 405, 78 S.Ct. 875, 2 L.Ed.2d 873 (1958); United States v. Johnson, 323 U.S. 273, 275, 65 S.Ct. 249, 89 L.Ed. 236 (1944); In re Palliser, 136 U.S. 257, 265-268, 10 S.Ct. 1034, 34 L.Ed. 514 (1890). In any case petitioner was found innocent on this count.
The uncontroverted testimony also showed that all of the acts alleged in count four occurred in New York County. Clearly the court’s venue was proper as to that count.2
Respondent, relying on Brock v. State of North Carolina, 344 U.S. 424, 73 S.Ct. 349, 97 L.Ed. 456 (1953) ; and Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), urges that applicant’s second allegation is not cognizable in habeas corpus because the double jeopardy provision of the Fifth Amendment is not applicable to states through the Fourteenth Amendment. Those cases also indicate, however, that the Fourteenth Amendment concept of fundamental fairness does limit a state’s power to subject an accused to successive trials for the same offense. More recently, in Hoag v. State of New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958), the Supreme Court held that the prosecution of a defendant for robbing a fifth victim, after the same defendant had been previously acquitted of robbing the other four victims of the same holdup, did not violate the fundamental fairness concept of the Fourteenth Amendment’s due process clause. Since that decision, however, the concept of fundamental fairness has been expanded and recently the Court, in a case involving the Fifth Amendment privilege against self-incrimination, held that privilege fully applicable to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Whether the Supreme Court would now also hold the Fifth Amendment privilege against double jeopardy fully applicable to the states 3 need not be anticipated here. For even adopting arguendo such a contention the application must fail.
The government does not deny that the overlapping counts of the indictment satisfy the same evidence test of double jeopardy. See Kirchheimer, The Act, The Offense and Double Jeopardy, 58 Yale L.J. 513 (1949) ; Note, Double [17]*17Jeopardy and the Multiple Count Indictment, 57 Yale L.J. 132 (1947). See generally Note, Statutory Implementation of Double Jeopardy Clauses, 65 Yale L.J. 339 (1956); Horade, The Multiple Consequences of a Single Criminal Act, 21 Minn.L.Rev. 805 (1937). It argues, however, that double jeopardy can only occur when the applicant “has been subject to more than one prosecution for the same crime.” (italics added) There is language to support this view. See Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); cf. Kirchheimer, supra at 513-14, n. 2. The Court has, however, also ruled that:
“the Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it.” Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873).
See Reid v. Covert, 354 U.S. 1, 37-38 n. 68, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) ; Note, Statutory Implementation of Double Jeopardy Clauses, supra. Since Ex parte Lange, courts have resorted to double jeopardy standards in determining the validity of multiple punishments flowing from multi-count indictments.4 Albrecht v. United States, 273 U.S. 1, 11-12, 47 S.Ct. 250, 71 L.Ed. 505 (1927) (Brandeis, J.) ; Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (1915); Schroeder v. United States, 7 F.2d 60, 65 (2d Cir. 1925); see McGann v. United States, 261 F.2d 956 (4th Cir. 1958) (simultaneous guilty plea to two indictments). But in any event the applicant must fail because he was not subjected to multiple trial or multiple punishment. The trial judge effectively protected the applicant’s rights by submitting the two counts to the jury in the alternative.5
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EDELSTEIN, District Judge.
This is an application for a writ of habeas corpus on the grounds that the applicant is being held in custody in vio lation of the Constitution of the United States. 28 U.S.C. § 2241(c) (3) (1959).
[15]*15The applicant was tried in the New York County Court of General Sessions, now the Supreme Court, New York County, on a four-count indictment.1 Counts two and four, both alleging the crime of criminally concealing and withholding stolen and wrongfully acquired property (diamonds), were submitted to the jury. Count two, insofar as it is relevant, charged that the defendant:
“in the County of New York, between on or about [sic] May 29,1959 and on or about May SO, 1959 concealed * * * certain property, having an aggregate value in excess of $100,000, to wit, a quantity of diamonds. * * * ”
and count four charged, in part, that the defendant:
“in the County of New York, on or about May 29, 1959 concealed * * certain property, having an aggregate value in excess of $500.00, to wit, a quantity of diamonds. * * ”
The jury found the applicant innocent on the second count and guilty on the fourth count. He alleges in substance that: (1) he was tried in New York County for a crime occurring in Queens County in violation of the Sixth Amendment to the Constitution; (2) he was exposed to double jeopardy in violation of the Fifth Amendment to the Constitution in that one of the two counts of the indictment [16]*16submitted to the jury was completely contained within the other count; and implicitly (3) that the indictment and judge’s charge were so ambiguous that the resulting confusion of the jury (as demonstrated by the questions they asked of the judge) denied petitioner due process of law.
Petitioner’s first contention is without merit. The uncontradicted testimony showed that all of the gems originated from the same holdup. Applicant acted as a middleman and took possession of some of the stolen gems on May 29, 1964 (in New York County) and took possession of the balance of the gems that night and the following day in Queens County. Since part of the crime alleged in the second count occurred in New York County and the remainder occurred in Queens County, venue for such a continuing offense would have been constitutionally proper in either county. See, e. g., United States v. Cores, 356 U.S. 405, 78 S.Ct. 875, 2 L.Ed.2d 873 (1958); United States v. Johnson, 323 U.S. 273, 275, 65 S.Ct. 249, 89 L.Ed. 236 (1944); In re Palliser, 136 U.S. 257, 265-268, 10 S.Ct. 1034, 34 L.Ed. 514 (1890). In any case petitioner was found innocent on this count.
The uncontroverted testimony also showed that all of the acts alleged in count four occurred in New York County. Clearly the court’s venue was proper as to that count.2
Respondent, relying on Brock v. State of North Carolina, 344 U.S. 424, 73 S.Ct. 349, 97 L.Ed. 456 (1953) ; and Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), urges that applicant’s second allegation is not cognizable in habeas corpus because the double jeopardy provision of the Fifth Amendment is not applicable to states through the Fourteenth Amendment. Those cases also indicate, however, that the Fourteenth Amendment concept of fundamental fairness does limit a state’s power to subject an accused to successive trials for the same offense. More recently, in Hoag v. State of New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958), the Supreme Court held that the prosecution of a defendant for robbing a fifth victim, after the same defendant had been previously acquitted of robbing the other four victims of the same holdup, did not violate the fundamental fairness concept of the Fourteenth Amendment’s due process clause. Since that decision, however, the concept of fundamental fairness has been expanded and recently the Court, in a case involving the Fifth Amendment privilege against self-incrimination, held that privilege fully applicable to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Whether the Supreme Court would now also hold the Fifth Amendment privilege against double jeopardy fully applicable to the states 3 need not be anticipated here. For even adopting arguendo such a contention the application must fail.
The government does not deny that the overlapping counts of the indictment satisfy the same evidence test of double jeopardy. See Kirchheimer, The Act, The Offense and Double Jeopardy, 58 Yale L.J. 513 (1949) ; Note, Double [17]*17Jeopardy and the Multiple Count Indictment, 57 Yale L.J. 132 (1947). See generally Note, Statutory Implementation of Double Jeopardy Clauses, 65 Yale L.J. 339 (1956); Horade, The Multiple Consequences of a Single Criminal Act, 21 Minn.L.Rev. 805 (1937). It argues, however, that double jeopardy can only occur when the applicant “has been subject to more than one prosecution for the same crime.” (italics added) There is language to support this view. See Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); cf. Kirchheimer, supra at 513-14, n. 2. The Court has, however, also ruled that:
“the Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it.” Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873).
See Reid v. Covert, 354 U.S. 1, 37-38 n. 68, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) ; Note, Statutory Implementation of Double Jeopardy Clauses, supra. Since Ex parte Lange, courts have resorted to double jeopardy standards in determining the validity of multiple punishments flowing from multi-count indictments.4 Albrecht v. United States, 273 U.S. 1, 11-12, 47 S.Ct. 250, 71 L.Ed. 505 (1927) (Brandeis, J.) ; Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (1915); Schroeder v. United States, 7 F.2d 60, 65 (2d Cir. 1925); see McGann v. United States, 261 F.2d 956 (4th Cir. 1958) (simultaneous guilty plea to two indictments). But in any event the applicant must fail because he was not subjected to multiple trial or multiple punishment. The trial judge effectively protected the applicant’s rights by submitting the two counts to the jury in the alternative.5 He was found guilty only on the fourth count and sentenced only on that count.
Applicant’s final claim, that the jury’s alleged confusion (as reflected in the questions asked 6 of the judge) denied applicant due process of law, must also [18]*18be rejected. The transcript shows that the trial judge answered the written •questions sent by the jury, but declined to answer the oral questions posed by the foreman, stating:
“I think it is better that you go back and discuss the question that you have in your mind; and if you .still have the question, I prefer that you write it out and let us have it.”
'The jury then retired. They did not again propound any questions either orally or in writing before returning the verdict. Since the jury did not ask the court any further questions they must be deemed to have been satisfied as to the judge’s instructions.7 Moreover, all of the defendant’s objections (which were characterized by the trial court as requests for additional instructions), made after the original charge to the jury, were granted. No objections, however, were made to the supplementary instructions given in response to the jury’s written .and oral questions. In the federal courts, therefore, no assignment of error to the supplementary instructions could have been presented on appeal, Fed.R.Crim.P. 30, where the alleged errors were neither “plain” nor “substantial,” Fed.R.Crim.P. 52(b); United States v. Haynes, 291 F. 2d 166, 167 (2d Cir. 1961), and did not “seriously * * * [affect] the substantial rights of defendant.” United States v. O’Connor, 237 F.2d 466, 472 (2d Cir. 1956). There is no reason to grant broader scope to a review on collateral attack by habeas corpus. The charge cannot be perused for mere irregularities (even assuming irregularities could be found) when, as in this case, the charge as a whole, fairly submitted the issues to the jury and therefore did not deny the defendant due process. See United States ex rel. Petersen v. La Valle, 279 F.2d 396, 400-401 (2d Cir.), cert. denied, 364 U.S. 922, 81 S.Ct. 289, 5 L.Ed.2d 262 (1960); Kenion v. Gill, 81 U.S.App. D.C. 96, 155 F.2d 176 (1946).
Application denied.