Opinion · Court of Appeals for the Fifth Circuit

Ainsworth v. Sanford

Ainsworth v. Sanford, 104 F.2d 96 (5th Cir. 1939)

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1939-05-20
Topic
general

McCORD, Circuit Judge. On November 9, 1936, Joseph E. Ains-worth was convicted under an indictment charging violation of the Internal Revenue Laws. He was given a sentence of three years on count 1, two years on count 2, two years on count 3, and two years on count 4, all sentences to run consecutively. The prisoner was committed to the United States Penitentiary at Atlanta, Georgia, on November 14, 1936.

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AINSWORTH v. SANFORD,104 F.2d 96(5th Cir. 1939)
AINSWORTH v. SANFORD, Warden.
No. 9006.
Circuit Court of Appeals, Fifth Circuit.
May 20, 1939.
Appeal from the District Court of the United States for the Northern District of Georgia; E. Marvin Underwood, Judge.

Habeas corpus proceeding by Joseph E. Ainsworth against J.W. Sanford, Warden, United States Penitentiary, Atlanta, Ga. From an order denying the application for a writ of habeas corpus, Joseph E. Ainsworth appeals.

Affirmed.
Richard L. Voelker, Jr., of New Orleans, La., and Joseph E. Ainsworth, in pro. per., of Atlanta, Ga., for appellant.

Lawrence S. Camp, U.S. Atty., and Harvey H. Tisinger and J. Ellis Mundy, Asst. U.S. Attys., all of Atlanta, Ga., for appellee.
Before FOSTER and McCORD, Circuit Judges, and BORAH, District Judge.
McCORD, Circuit Judge.
On November 9, 1936, Joseph E. Ainsworth was convicted under an indictment charging violation of the Internal Revenue Laws. He was given a sentence of three years on count 1, two years on count 2, two years on count 3, and two years on count 4, all sentences to run consecutively. The prisoner was committed to the United States Penitentiary at Atlanta, Georgia, on November 14, 1936.

The record discloses that on November 30, 1937, the district judge dismissed Ainsworth's writ of habeas corpus. On September 15, 1938, application for another writ was denied. His last application was denied on November 2, 1938, and he appeals.

The second count of the indictment charged Ainsworth with having in his possession a complete distilling apparatus without having registered the same with the "Collector of Internal Revenue". This count was bad, and on February 17, 1938, while Ainsworth was still serving time imposed under the first count, an order correcting the sentence was entered by the District Court for the Southern District of Mississippi. The sentence as corrected eliminated count 2 and its penalty, and the sentences on counts 1, 3, and 4 were made to run consecutively. This correction was in conformity with the decision in Fleisher v. United States,302 U.S. 218,58 S.Ct. 148,82 L.Ed. 208.

The order denying the application for a writ of habeas corpus was correct.

The judgment is affirmed.