MILLER v. ADERHOLD, Warden

MILLER v. ADERHOLD, Warden. No. 6470. Circuit Court of Appeals, Fifth Circuit. Feb. 20, 1932. Rehearing Denied March 11, 1932. See, also, 52 F.(2d) 1084. Joseph F. Miller, of Atlanta, Ga., and E. E. Willis, of New Orleans, La., for appellant. Clint W. Hager, U. S. Atty., and Hal Lindsay, Asst. U. S. Atty., both of Atlanta, Ga., for appellee. Before BRYAN, FOSTER, and WALKER, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. Appellant pleaded guilty to an indictment charging him with stealing mail matter, in violation of section 194 of the Criminal Code (18 USCA § 317). The District Judge who received the plea suspended sentence indefinitely, but some six months later another judge of the same District Court imposed a sentence of four years in the Atlanta penitentiary. This appeal is taken from an order dismissing a writ of habeas corpus previously issued, and remanding appellant to custody. The order indefinitely and unconditionally suspending the imposition of sentence was void. Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355. A judge of the trial court had authority, notwithstanding the attempted suspension, to impose sentence, and to order that appellant be committed to the penitentiary. United States, ex rel. Campbell v. Bishop (C. C. A.) 47 F.(2d) 95. The judgment is affirmed.