sue this writ at any time prior to its actual issuance and was under no legal duty to do so without request.

The motion to dismiss the writ, because not "brought" within time is allowed.

UNITED STATES v. PEEKE.

(Circuit Court of Appeals, Third Circuit. April 22, 1907.)

No. 58.

CRIMINAL LAW-EXCESSIVE SENTENCE-CONVICTION ON DIFFERENT COUNTS. Where a defendant has been convicted on different counts of an indictment charging separate offenses under the same statute, the court may impose separate and cumulative sentences upon the several counts, but a single sentence for a term longer than is authorized by the statute for one offense is void to the extent of the excess, and another court cannot cure the defect by apportioning the term upon the different counts, but after serving the lawful part of the term the prisoner may be discharged on a writ of habeas corpus.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, 88 3285, 3298-3300; vol. 25, Habeas Corpus, § 23.

Power of court to revise sentence, see note to Nichols v. United States, 46 C. C. A. 412.]

Appeal from the District Court of the United States for the District of New Jersey.

For opinion below, see 144 Fed. 1016.

John P. Nields, for appellant.

Scott Scammell, for appellee.

Before GRAY and BUFFINGTON, Circuit Judges, and HOL LAND, District Judge.

HOLLAND, District Judge. This is an appeal from an order of the District Court of New Jersey discharging Erastus Carl Benedict Peeke from the state prison at Trenton on a writ of habeas corpus. Peeke was tried and convicted in the United States Court in the District of Delaware on the third, fourth, fifth, sixth, and sixteenth counts of an indictment charging him under section 5440, Rev. St. [U. S. Comp. St. 1901, p. 3676], with the crime of conspiring to commit an offense prohibited in section 5501, Rev. St. [U. S. Comp. St. 1901, p. 3709].

On August 2, 1904, the following judgment was pronounced against him:

"And now, to wit, this second day of August, A. D. nineteen hundred and four, the district attorney moves for judgment. And it appearing to the court that the jury has found the said Erastus Carl Benedict Peeke, alias Benedict Peeke, guilty in manner and form as he stands indicted in the third, fourth, fifth, sixth, and sixteenth counts of the indictment returned against him in the above-entitled cause on the twenty-fourth day of February, A. D., nineteen hundred and four, it is considered and adjudged by the court now here that you, Erastus Carl Benedict Peeke, alias Benedict Peeke, do forfeit and pay to the United States a fine of three thousand dollars and costs of this prosecution; and further that you, Erastus Carl Benedict Peeke, allas Benedict Peeke, be imprisoned in the New Jersey State Prison at Trenton, New Jersey,

for the term of five years, beginning on this day and ending on the first day of August, A. D. nineteen hundred and nine. And it is further considered, adjudged, and ordered by the court now here that you, Erastus Carl Benedict Peeke, alias Benedict Peeke, be now committed to the custody of the marshal of the United States for the district of Delaware in order that the foregoing sentence may be carried into execution."

After sentence, on the same day, he was delivered to the keeper of the New Jersey state prison, where he was confined as a prisoner until April 16, 1906, the date of his discharge.

* * *

to a

In his petition for the writ he stated that sentence was imposed upon him "for a term of five years, beginning on this day (to wit, 2d day of August, 1904), and ending on the 1st day of August, 1909, and that, "according to the provisions of section 5440 and the conviction thereunder, the court was limited in its power to punish period of imprisonment of not more than two years," and as a consequence the petitioner insists that he is unlawfully detained, and should be discharged. The prisoner was entitled to a reduction of time for good behavior provided for by section 5540 of the Revised Statutes. With this credit to which he is entitled a two-year sentence expired on the 11th day of March, 1906, upon which day he would be entitled to be discharged, if his contention be right as to the unlawfulness of the sentence imposed. The entry of the decree was withheld from April 6th to the 16th to allow time for the correction of the judgment by the court imposing the sentence, if the records warranted a correction. There being no amendments made, the prisoner upon the latter date was discharged, from which judgment an appeal was taken to this court, and a number of errors assigned, all of which can be disposed of in the consideration of the objections: (1) The Court erred in holding that the sentence was void except for the period of two years; and (2) the remedy of the prisoner, if any, was by writ of error, and not by habeas corpus. The petitioner was convicted under section 5440 for conspiracy to violate section 5501, in five different counts in the same indictment, and, it is contended, for five distinct offenses, for each of which offense section 5440 authorized the imposition of a maximum term of imprisonment of two years. The authorities cited by Judge Lanning are sufficient to show that cumulative sentences can be imposed in the federal courts (Ex parte Peeke [D. C.] 144 Fed. 1018), but, in order that a sentence should have this effect, it must be imposed in that form (United States v. Patterson [C. C.] 29 Fed. 775). Where there is a general verdict on two or more counts of an indictment charging crimes which are of the same character, although growing out of totally distinct and separate transactions, sentence may be passed and judgment may be entered for a specified term of imprisonment upon each count, which terms must be consecutive, and it is error to sentence for a certain period in gross. 12 Cyc. 962. Upon these five different counts of the indictment there is no doubt but that a term of imprisonment in the aggregate could have been inflicted by cumulative sentences of five years, or even ten; but this was not done. The judgment was a single sentence "for the term of five years, beginning this day (to wit, August 2, 1904) and ending on the 1st day of August, 1909." As

the maximum term for which the prisoner could be sentenced upon any count in the indictment was two years, this sentence is clearly excessive to the amount of three years, and to that extent null and void. If construed, as suggested by counsel for the government, to be five successive sentences of one year each, it would be entirely void. Section 5440 does not prescribe confinement in a "state jail or penitentiary," and section 5541, Rev. St. [U. S. Comp. St. 1901, p. 3721], prohibits imprisonment in a "state jail or penitentiary" unless the statute violated prescribes such imprisonment, or the sentence is for a period longer than one year. Mills Case, 135 Ú. S. 263, 10 Sup. Ct. 762, 34 L. Ed. 107. If the prisoner, therefore, is to be detained for the full time of five years, there must be an apportionment of the time other than one year to each count. If we were to divide it into three successive sentences, the first for 2 years, the second for 11⁄2 years, and the third for 11⁄2 years, to which count of the indictment would we assign the different terms? The prisoner has already served two years, and it may be asked upon which count of the indictment did he serve this term, which count would cover the second period of confinement, and, after the expiration of that, to which count should we assign the last year and a half? These counts charge distinct conspiracies with different persons to violate section 5501. Should some newly discovered evidence induce the executive to pardon the prisoner on one or more counts, how would it be possible to ascertain to what part of the sentence the pardon applied? To what reduction from the five-year term would he be entitled? To state these questions is to answer them.

The District Court was not without authority for refusing to correct the sentence by assigning different parts of the term to separate counts in the indictment. In the case of Dimmick v. Tompkins, 194 U. S. 540, 24 Sup. Ct. 780, 48 L. Ed. 1110, the Supreme Court refused to apportion a sentence to two counts in an indictment, assigning one year to each.

The learned judge in the court below, after referring to this case, aptly says:

"It is quite as impossible to construe the judgment now before me as one for imprisonment for five successive terms of one year each, or as one for any other number of terms of more than one year and not more than two years each, as it was for the Supreme Court to construe the judgment in the Dimmick Case as one for imprisonment for two successive terms of one year each.”

It is undoubtedly a single judgment for a single term of five years, and, the maximum time for which the defendant can be imprisoned for any offense of which he was convicted in the five different counts being two years, the sentence is good to that extent (Goode v. U. S., 159 U. S. 663, 16 Sup. Ct. 136, 40 L. Ed. 297), and as to that part of the sentence in excess of the power of the court to impose it is void (In re Bonner, 151 U. S. 242, 14 Sup. Ct. 323, 38 L. Ed. 149), and it may be dealt with in this proceeding without disturbing the valid portion of the sentence. U. S. v. Pridgeon, 153 U. S. 62, 14 Sup. Ct. 746, 38 L. Ed. 631. If we are correct, then, that the sentence is void for all time in excess of two years, that time having elapsed, any further confinement would be upon a void judgment and without warrant

of law, which entitled him to be heard upon a writ of habeas corpus, and he was properly discharged. In re Patterson, supra; U. S. v. Pridgeon, supra; In re Bonner, supra; Ex parte Virginia, 100 U. S. 343. 25 L. Ed. 676.

The order of the District Court of April 16, 1906, discharging Erastus Carl Benedict Peeke from the custody of the keeper of the New Jersey state prison at Trenton is affirmed.

In re UNITED EDUCATIONAL CO.

Appeal of PERKINS-GOODWIN CO.

(Circuit Court of Appeals, Second Circuit. March 26, 1907.)

No. 209.

SALES DISTINGUISHED FROM PLEDGE-CORPORATE STOCK.

B.. being desirous of reorganizing the business of K. & Co., who were indebted to claimant, organized the E. Company, of the preferred stock of which claimant agreed to accept $5,000 of K. & Co.'s indebtedness, with a bonus of 20 per cent. common stock, and agreed not to press the new corporation for the remaining indebtedness so long as claimant felt assured of its ultimate success, it being also agreed that B., through the new corporation, should sell to others the full preferred capital stock issue of the company and redeem within 18 months the preferred stock and bonus which claimant agreed to accept as a temporary arrangement to further a reorganization, but before this could be accomplished the new corporation became a bankrupt. Held, that claimant's arrangement constituted a pledge of the new corporation's stock as security for the debt of K. & Co., and not a sale of such stock.

[Ed. Note.-Rights and liabilities of pledgees of corporate stock, see note to Frater v. Old Nat. Bank of Providence, R. I., et al., 42 C. C. A. 135.] Appeal from the District Court of the United States for the Southern. District of New York.

On appeal from an order confirming an order of the Referee in Bankruptcy which reduced the claim of the appellant-The Perkins-Goodwin Company-to to extent of $5,000. The Perkins-Goodwin Company filed a proof of debt against the United Educational Company, the bankrupt, for merchandise sold and delivered in the sum of $23,944.26. Upon an order for the re-examination of the claim the referee reduced the amount to $18,944.26 and his action was subsequently sustained by the District Court. The facts are fully set out in the opinion of the referee and need not be repeated here. Suffice it to say that the negotiations between the parties culminated in a letter, dated April 10, 1905, written by the Perkins-Goodwin Company to F. R. Boocock, representing the bankrupt, then about to be organized. This letter and the reply sufficiently state the agreement. It is as follows:

"Dear Sir: We understand that it is your purpose to organize a new company with a capitalization of $300,000, of which $100,000 is to be preferred stock, for the purpose of acquiring the business, assets and good-will of E. L. Kellogg & Co. and such other independent periodicals as it may appear wise and advantageous to secure. Of this preferred capital stock, we understand that you purpose underwriting $40,000 before the operation of the new company in order to provide cash working capital, but that the cash under this underwriting guarantee will not be available for a period of six months. "In order that you may succeed in your purpose, we agree, upon submission to us of evidence that the $40,000 of preferred stock has been underwritten, to accept $5,000 of whatever amount E. L. Kellogg & Co. may now owe us or that may become due upon May 15th so long as the present indebted

ness is not increased, in the 7% cumulative preferred stock of the new company with a bonus of 20% of common stock, and that we will not press you upon the remaining indebtedness so long as we feel assured of your ultimate success in the matter.

"It is understood, however, that you will sell through your own periodicals and other channels the full preferred capital stock issue of the new company and redeem within eighteen months the preferred stock and bonus which we thus agree to accept as a temporary arrangement to further your plans.

"We also understand that the assets of the new company will be sufficient to thorougly protect the preferred stock issue, that the earning capacity is reasonably certain to earn dividends upon the preferred stock, and that the employment of the total preferred stock issue as planned will not only entirely liquidate all assumed indebtedness but provide also substantial cash working capital."

About the middle of May thereafter the certificates of stock were delivered to the Perkins-Goodwin Company and, on June 2, 1905, Mr. Boocock, representing the bankrupt, wrote as follows:

"Perkins, Goodwin & Co., City-Gentlemen: Under date of April the 10th you addressed a communication to the writer agreeing to accept, provided he was successful in his reorganization of the E. L. Kellogg & Company. $5,000 of the preferred stock of the new corporation in exchange for a like amount of indebtedness of E. L. Kellogg & Co. We have completed our part of the arrangement by turning over to you the stock in question, and receiving your receipt therefor, and we take pleasure in confirming that paragraph of the letter in question relative to the purpose on our part to relieve you by sale in other directions within a period of eighteen months of the stock you thus accept."

Upon the failure of the United Educational Company to comply with the conditions of the letter of April 10 the certificates of stock were returned to its president December 12, 1905. The company was adjudicated a bankrupt on December 26, 1905, at which time it had not disposed of all its preferred stock.

Mortimer W. Byers, for appellant.

Charles D. Ridgway, for trustee in bankruptcy.

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

COXE, Circuit Judge. We are unable to agree with the referee in thinking that the agreement, as expressed in the correspondence, amounted to an absolute purchase from the Educational Company of $5,000 of its preferred stock, the consideration being a reduction of its indebtedness to the Perkins-Goodwin Company to that amount, which purchase was fully consummated by the delivery of the stock. We are also of the opinion that the referee erred in construing the agreement to sell the entire amount of preferred stock and to redeem the $5,000 taken by the Perkins-Goodwin Company as the personal undertaking of Mr. Boocock.

On the contrary we think that, read in the light of the surrounding circumstances, the correspondence clearly establishes an agreement for an extension of credit for eighteen months with the stock as collateral security.

Our reasons for this conclusion may be epitomized as follows: First. The stock was taken solely as an accommodation to the new company to enable it to get a successful start.

Second. The Perkins-Goodwin Company had been solicited and had declined to take stock in the new company in payment of the indebtedness, or otherwise.