Kellogg v. Miller.

with reference to the law of Nebraska is affirmatively shown by the testimony. In the course of the negotiations reference was continually had to the law of Nebraska relating to interest. The borrower lived there and represented to complainant that a loan at ten per cent. under the laws of Nebraska would be lawful. Advice was taken as to the proper mode of contracting under that law, and out of abundance of caution it was decided that Miller should return to Nebraska and there execute the bond and mortgage and have the latter recorded, after which he was to forward them by mail to complainant in New York. Respondent, J. G. Miller, himself admits in testimony that he informed complainant that the legal rate of interest in Nebraska was ten per cent., and that complainant informed him that he wanted to make the contract so as to be sure of that rate of interest. When we bear in mind that the parties had, under the circumstances in which they were placed, a perfect right to adopt the law of either state, provided only they did so in good faith, and that they were so advised, it is difficult to see what sufficient motive they could have had to resort to any device or to act in bad faith. Men do not ordinarily prefer to violate a penal statute and run the risk of the confiscation of valuable property, when a safe, convenient and honest way of proceeding is open before them.

It only remains to consider some facts not enumerated above, and upon which counsel for respondents relies. It appears that at the time of the original agreement the complainant advanced to Miller $4,500, on which interest at ten per cent. was charged from January 30, 1871, to March 15, 1871. It is insisted that as to this sum there was usury under the law of New York, and that inasmuch as the $4,500 went into the mortgage debt and into the bond, it makes the whole bond usurious. But it is clear that there was in reality but one transaction, to wit: A loan of $15,000 to a citizen of Nebraska to be secured upon land in that state, and to bear ten per cent. per annum interest according to the law of that state.

This being so, the fact that pending the preparation and ex

Ex parte Peters.

ecution of the necessary papers, and their transmission from Nebraska to New York, the complainant advanced a portion of the loan at the rate of interest agreed upon, was not a violation of the usury laws of New York.

I hold that, according to the evidence and the law, the entire transaction from the beginning was conducted with reference to the law of Nebraska relating to interest, and must be judged by that law alone. This renders it quite unnecessary to go into the question whether ten per cent. interest was actually paid in New York upon the sum advanced on the loan, or any part of it; because if it is so, it does not render the contract usurious.

The exceptions to the master's report are overruled, and decree will be entered for complainant in accordance with the said report.

EX PARTE PETERS.

(Western District of Missouri. April, 1880.)

1. INDICTMENT FOR SEVERAL OFFENSES IN ONE INDICTMENT. Sec. 1024 of the Revised Statutes of the United States permits separate offenses of the same class, and growing out of the same transactions, to be joined in one indictment in separate counts, provided they be such as may be properly joined.

2. SAME

BURGLARY-LARCENY.-Burglary and larceny growing out of the same transaction are such distinct offenses as to be properly joined in the same indictment in separate counts and separately punished.

3. SAME SAME-SAME.- Held, accordingly, that a person who breaks and enters a house with intent to steal therefrom, and actually steals, may be punished under separate indictments, or under separate counts in the same indictment, for two offenses, or one, at the election of the power prosecuting him; and a person charged and convicted of both offenses growing out of the same transaction is not entitled to be released from imprisonment on habeas corpus, upon the ground that his sentence was illegal and void, either in whole or in part.

Petition for discharge under the habeas corpus act.

Ex parte Peters.

MCCRARY, Circuit Judge.- Petitioner was indicted in the United States district court for this district. The indictment contained four counts.

The first count charged the petitioner with burglary in breaking and entering the building used as a postoffice at Bucklin, Linn county, Missouri, with intent to commit a larceny, on the twenty-eighth of October, 1874.

The second count charged him with larceny committed at the same time and place by stealing from said postoffice a letter containing $307.50.

The third count charged him with burglary in breaking and entering the building used as a postoffice at Unionville, Putnam county, Missouri, with intent to commit larceny, on the twelfth day of November, 1874.

The fourth count charged him with larceny at the same time and place named in the third, by stealing from said postoffice two letters, one containing the sum of $146.30 in money.

There was a plea of guilty upon all the counts, and the petitioner was sentenced to be imprisoned in the penitentiary of Missouri for the term of two years under each of the four counts; the first term to commence on the eighth of March, 1875, the second to commence on the expiration of the first term of two years, the third term to commence on the expiration of the second term of two years, and the fourth term to commence on the expiration of the third term of two years, and said four terms to constitute a continuous imprisonment of eight years.

On the eighteenth of April, 1877, petitioner applied to this court for release on the ground that his imprisonment was illegal, and upon full consideration it was then determined that his sentence was valid at least for two terms of two years each, the court being of the opinion that at least two distinct offenses were charged, one in the first and one in the third count, and that after conviction, by force of section 1024, R. S., these two offenses must be treated in this proceeding as having been "properly joined."

Ex parte Peters.

The question as to the validity of the remainder of the sentence was expressly reserved until it should be presented after the expiration of four years of imprisonment. See 4 Dillon, p. 169.

The two terms of two years each having expired, the petitioner now renews his application for discharge, and we are called upon to determine whether the sentence as to the remaining four years is valid.

The ground of the petitioner's application for discharge is thus stated in his petition now before us:

"And your petitioner alleges that his present imprisonment is illegal, and that he is entitled to be discharged therefrom, in this, that he has fully served out the terms of imprisonment imposed upon him for the two burglaries charged in the indictment, and that the other two sentences of two years each were imposed for two separate larcenies, each of which is charged in said indictment to have been committed at the same time and place, and as part and parcel of a burglary whereof this petitioner was duly convicted and sentenced, and your petitioner avers the said sentences to be illegal in this, that the district court had no legal power to sentence this petitioner to imprisonment for a larceny charged to have been committed at the same time and place, and as part of the same act of burglary whereof he was convicted and sentenced."

I. There is no statute of the United States affecting this question, and we are therefore to adopt and follow the rule of the common law. Conkling's Treat. (5th ed.) 181.

II. The question tersely stated is, whether it was competent for the district court to sentence the petitioner for both burglary and larceny charged in separate counts, but both appearing to be part of the same act.

Sec. 1024 of the Revised Statutes is as follows: "When there are several charges against any person for the same act or transaction, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined

Ex parte Peters.

in one indictment in separate counts; and if two or more indictments are found in such cases, the court may order them consolidated."

The effect of this statute is to permit separate offenses of the same class and growing out of the same transactions to be joined in one indictment in separate counts, provided they be such as may be properly joined." It makes no change in the law as it previously existed, except to permit offenses which might have been theretofore presented in separate indictments to be presented in separate counts of the same indictment. It leaves entirely open the question whether burglary and larceny, growing out of the same transaction, are such distinct offenses as to be properly joined in the same indictment and separately punished.

According to the great weight of authority, it may be regarded as settled that a person who breaks and enters a house with intent to steal therefrom, and actually steals, may be punished under separate indictments for two offenses, or one, at the election of the power prosecuting him. 1 Bishop on Crim. Law, sec. 1062, and cases cited.

The case of Josslyn v. Commonwealth, 6 Metcalf (Mass.), 236, is directly in point. See also State v. Ridley and Johnson, 48 Iowa, 370, and Breese v. State, 12 Ohio St. 146.

The opposite view was ably stated by Waite, C. J., in his dissenting opinion in Wilson v. State, 24 Conn. 57, and his reasoning is so strong that if it were a question of first impression, I should be inclined to adopt his opinion. Looking, however, to the adjudicated cases, I find the law to be very well settled against the position assumed by the counsel for petitioner. I am the more inclined to follow these adjudications in this case because the punishment inflicted might, under the two counts admittedly good, have extended to ten years' imprisonment. R. S. secs. 5469, 5478.

The prayer of the petitioner is denied.

KREKEL, District Judge, concurs.