Clayman v. Smithers

PER CURIAM. An information was filed against the appellant, Joe dayman, containing two counts. The first of these charged the unlawful sale of one pint of intoxicating liquor. The second charged the unlawful possession of one pint of intoxicating liquor. He was convicted on both counts,, and was sentenced to pay a fine of $200 and be imprisoned for four months. This conviction and sentence were affirmed by this court. 12F.(2d) 598. Thereafter dayman paid the fine of $200, and upon his being taken into custody to carry out the sentence of imprisonment he sued out a writ of habeas corpus, and asked that he be discharged on the ground that the two counts of the information charged but one offense, and that the sentence of imprisonment was unlawful. From an order denying his discharge he has appealed to this court. We think that the order denying the discharge of dayman should be affirmed. It does not appear upon the face of the record that the liquor which he was charged with possessing is the same which he was charged with selling, and he cannot add to the record by the allegations of his petition for habeas corpus. Riggs v. Workman (C. C. A. 4th) 14 F. (2d) 5. If there was error in the proceedings of the District Court, this could be corrected only by writ of error, not by habeas corpus. Moyer, Warden, v. Anderson (C. C. A. 5th) 203 F. 881. Furthermore, it is settled that possession and sale constitute distinct offenses under the National Prohibition Act (Comp. St. § 10138% et seq.), and may be separately punished. Albrecht v. U. S., 47 S. Ct. 250, 71 L. Ed.-. As the defendant was convicted of both possession and sale, the sentence imposed was sustained by the record. There was no error, and the order of the judge denying discharge is affirmed. Affirmed. The late Judge ROSE concurred that the order denying discharge should be affirmed, but died before this opinion was prepared.