United States ex rel. Davis v. Hill

17 F. Supp. 646, 1937 U.S. Dist. LEXIS 2137

• Court: District Court, M.D. Pennsylvania
• Decided: January 13, 1937
• Docket: No. 90
• Status: Published

Opinion

JOHNSON, District Judge.

This is a petition for a writ of habeas corpus by Wesley Davis, an inmate of the United States Northeastern Penitentiary at Lewisburg, Pa.

The petitioner pleaded guilty to an indictment in two counts; • the first count charging him with passing and uttering a forged United States postal money order, and the second count charging him with forging and counterfeiting the same money order. Petitioner was sentenced to five years on count 1 and three years on count 2 to run consecutively with the sentence on the first count.

The petitioner contends that both counts charge the same offense and are duplicitous, proof under the first count being sufficient to convict under the second count.

The act under which the indictment was drawn, 18 U.S.C.A. § 347, clearly makes forging and counterfeiting a money order an offense separate from uttering and passing. Each offense requires proof of a different element, and the indictment is therefore not duplicitous.

In United States ex rel. Simkoff v. Mulligan (C.C.A.) 67 F.(2d) 321, 323, a habeas corpus case construing a similar act, the court there said: “It must now be regarded as settled that possessing and selling, whether of spirituous liquors, narcotics, or counterfeit bills, are each separate offenses. .The counts of the indictment under consideration, and the statute in pursuance of which they were drawn, formally state different offenses under the recent rulings of the Supreme Court, and the defendant pleaded guilty to each count.”

And now it is ordered that the petition for a writ of habeas corpus be, and the same is hereby, dismissed and a writ of habeas corpus refused.