Irving J. MILLS, Plaintiff in Error, v. UNITED STATES, Defendant in Error

Irving J. MILLS, Plaintiff in Error, v. UNITED STATES, Defendant in Error. (Circuit Court of Appeals, Second Circuit. June 17, 1926) No. 398. In Error to the District Court of the United States for the Southern District of New York. Slade & Slade, of New York City (David Slade and Maxwell Slade, both of New York City, of counsel), for plaintiff in error. Emory R. Buckner, U. S. Atty., o£ New York City (John M. Blake, Asst. U. S. Atty., of Belle Harbor, N. Y., of counsel), opposed. Before HOUGH, MANTON, and HAND, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. We can see nothing in this record which justifies reversal, or indeed calls for discussion. The ease was clearly one for the jury, and the supposed errors either do not exist or are not of importance. However, the District Judge sentenced Mills to two years’ imprisonment on the conspiracy count and to a like term on the count for abetting in the concealment of assets, the two terms to run in sequence. We have no power to disturb this result, the two crimes being technically separate. But we have repeatedly disapproved of indicting a defendant for conspiracy when the crime itself was committed, and it is especially objectionable to join in one indictment a conspiracy count with one for the crime contemplated in the conspiracy. When this is followed by a cumulative sentence of the maximum term on each count, the result seems to us a plain perversion of the purpose of Congress. In our judgment, after the defendant has served his sentence on the count for abetting, he should be released, and, if we had any power in the premises, we should not hesitate then to release him. We think it at this time not out of place respectfully to suggest such a course to the pardoning power. Judgment affirmed.