MILLER v. ADERHOLD

MILLER v. ADERHOLD. No. 6791. Circuit Court of Appeals, Fifth Circuit. May 2, 1933. Application for Rehearing Denied June 8, 1933. See, also, 56 F.(2d) 152. Joseph Miller, of Atlanta, Ga., in pro. per. Clint W. Hager, U. S. Atty., and Hal Lindsay, Asst. U. S. Atty., both of Atlanta., Ga., for appellee. Before BRYAN, FOSTER, and SIB-LEY, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. This is a,n appeal from an order discharging the writ of habeas corpus and remanding the prisoner to custody. Appellant was convicted upon two counts of an indictment, the first of which charged him with robbing a mail carrier of mail matter, and putting the carrier’s life in jeopardy by the use of a dangerous weapon; and the second with an assault to commit the same offense. 18 USCA § 320. He was sentenced January 17, 1923, to the penitentiary for 25 years on the first count and for 10 years on the second count, the sentences to run concurrently; and in addition the court sentenced him to pay a fine of $100 on each count. He has now paid the fine and seeks release on the ground that the sentences to prison were void. Clearly this position is untenable. It was the fine that was imposed without authority of law. We have not before us the question whether appellant can be punished for both the assault and the robbery. That question in all probability will never become important because the sentences run concurrently, and imprisonment for 25 years is the only sentence that is authorized by the statute where the accused is guilty as charged in the first count. Until appellant shall have served the sentence of imprisonment imposed on the first count, he will not be entitled to a release. The judgment is affirmed.