called the jury and directed a verdict in favor of defendants, on the ground that the action set forth in the so-called amended petition. was barred. Plaintiffs excepted to the ruling of the court, and sued out this writ of error to review the judgment entered. It is first urged as error that the court below, in rendering final judgment, did not follow the rulings of the other judges, who had ruled, as claimed by counsel for plaintiff, that the action was not barred by the statute of limitations.

[1] It may be stated, as a matter of comity and orderly judicial procedure, that where a question has been ruled by one District Judge, the ruling ought to be followed by another District Judge sitting in the same case; otherwise, great confusion might arise if each judge called to sit in a case should set up his own independent opinion upon a question which had been already ruled in the same case. The ruling, however, which transferred the cause to the law side. of the court, did not decide any question regarding the statute of limitations, and we are not informed by the record for what reasons the other judges made the rulings they did. But whatever may have. been the reasons, or whatever may be the correct procedure, the rulings made in no way affect the power of this court to review the final judgment.

[2] We therefore pass to the only remaining question in the case, and that is: Was the cause of action stated in what is called the amended petition a new cause of action, or was it an amendment of an old cause of action, so as to relate back to September 22, 1908, when the bill was filed? It seems to be conceded that the cause of action stated in the so-called amended petition is a cause of action mentioned in section 7569 of the Revised Statutes of Nebraska (Ed. 1913). This section provides a limitation of four years for actions for relief on the ground of fraud, and also provides that the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud. It is also conceded, or at least must be conceded, that if the so-called amended petition set up a new cause of action that it was barred by the statute. Plaintiff claims, however, that the case stated in the so-called amended petition was simply an amendment of the case stated in the original bill, and therefore the statute of limitations did not run after the bill was filed. We think the contention of counsel for plaintiff is unsound, and that this clearly appears by an examination of the record.

The original bill was brought for the purpose of rescinding the contract between the parties and for such damages as might be recovered in an equitable action with such relief in view. The bill was answered and the action proceeded to a determination, which would have resulted in the dismissal of the bill, had not the court decided that the course marked out by equity rule 22 ought to be followed. It appears from the report of the master and from the memorandum of the court that the cause in equity failed because Friederichsen had not refunded nor offered to refund the money paid to him by Renard on the exchange of lands, and also that Renard, with knowledge of the character of the Virginia lands, had cut vai

uable timber therefrom. In other words, Friederichsen by his own voluntary acts had rendered it impossible for him to place Renard in the same position as he was before the contract and deed were made. Now to say that an action at law, wherein the plaintiff did not seek to rescind the contract, but sought to affirm it and recover his damages for the fraud, is an amendment to the cause of action stated in the bill, seems to be clearly erroneous. The cause of action stated in the so-called amended petition was a new cause of action. There never had been stated in court such a cause of action as was stated in the so-called amended petition, and therefore it could not be said to be an amendment to any such cause of action. It was simply a new action at law, directly opposed to the theory stated in the bill. We think the case is clearly ruled by Whalen v. Gordon, 95 Fed. 305, 37 C. C. A. 70, a decision by this court, and also by the following cases: Union Pac. R. R. Co. v. Wyler, 158 U. S. 285-291, 15 Sup. Ct. 877, 39 L. Ed. 983; Robb v. Vos, 155 U. S. 13, 41-43, 15 Sup. Ct. 4, 39 L. Ed. 52; Stewart v. Hayden, 72 Fed. 403-411-412, 18 C. C. A. 618; First Nat. Bk. of Chadron v. McKinney, 47 Neb. 149, 151, 152, 66 N. W. 280; American Bldg. & Loan Ass'n v. Rainbolt, 48 Neb. 434, 440, 67 N. W. 493; Pollock v. Smith, 49 Neb. 864-868, 69 N. W. 312; First Nat. Bk. of Chadron v. Tootle, 59 Neb. 44, 46–48, 80 N. W. 264; Boggs v. Young, 81 Neb. 621, 624, 625, 116 N: W. 501.

We do not think this court intended in Schurmier et al. v. Conn. Mut. Life Ins. Co., 171 Fed. 1, 96 C. C. A. 107, to overrule Whalen v. Gordon. In the Schurmier Case it appeared that under a statute of Minnesota and by order of court creditors of a decedent estate were allowed 6 months within which to present their claims. Under the statute, if good cause was shown for the delay, the court might receive a claim and allow it not later than 18 months after the order. The insurance company, being a foreign creditor, began suit in the federal court upon its claim within 18 months, but set up no reason for the delay. After the 18 months had elapsed, and after demurrer sustained to plaintiff's pleading, on application the suit was transferred to the equity side of the court, and a bill filed setting up facts which were held sufficient cause for the delay, and the plaintiff was allowed to recover. But in this case there was no change of the cause of action, and the real question decided was whether the amendment, alleging facts which excused the delay, would relate back to the time of filing the original bill. In Union Pacific Ry. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983, it was held that, where the amendment alleges a new cause of action, the statute of limitations runs until the amendment is filed, and this though the amendment is made by consent.

We are clearly of the opinion that, if the cause of action stated in the petition at law can be called an amendment of the cause of action stated in the bill, which we very much doubt, still it was a new cause of action, and as such barred by the statute of limitations of Nebraska.

Judgment affirmed.

146 C.C.A.-6

(231 Fed. 886)

MORGAN, Warden, v. SYLVESTER et al.

(Circuit Court of Appeals, Eighth Circuit. March 24, 1916.)

No. 4534.

1. CRIMINAL LAW 200(3)-Former "JEOPARDY"-IDENTITY OF OFFENSES. It is not double "jeopardy" to convict and punish one, who broke into a post office and stole stamps therefrom, for larceny, under Penal Code (Act March 4, 1909, c. 321) § 47, 35 Stat. 1097 (Comp. St. 1913, § 10214), as well as for the breaking and entering, under section 192 (section 10362), though the larceny was in a sense a continuation of the breaking and entering.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 396; Dec. Dig. 200(3).

For other definitions, see Words and Phrases, First and Second Series, Jeopardy.]

2. HABEAS CORPUS 30(1) GROUNDS FOR RELIEF

ERROR.

Error, if any, in convicting one who stole stamps from a post office, under Penal Code, § 47, which provides for the punishment of larceny of property belonging to the government, rather than under section 190, which provides for the punishment of stealing any mail bag or other property in use by or belonging to the Post Office Department, was available to defendant on his trial, and on writ of error to the conviction, but it cannot be questioned by habeas corpus proceedings to procure discharge from the sentence of imprisonment.

[Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 25; Dec. Dig. 30(1).]

Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.

Habeas corpus by Sam Sylvester and another against Thomas W. Morgan, as Warden. From a judgment discharging the petitioners, respondent appeals. Reversed and remanded, with instructions to set aside the order discharging the prisoners and remand them to custody.

L. S. Harvey, Asst. U. S. Atty., of Kansas City, Kan. (Fred Robertson, U. S. Atty., of Kansas City, Kan., on the brief), for appellant. P. Louis Zickgraf, of Pittsburg, Kan. (John L. Kirkpatrick, of Pittsburg, Kan., on the brief), for appellees.

Before ADAMS and CARLAND, Circuit Judges, and TRIEBER, District Judge.

ADAMS, Circuit Judge. The appellees, Sylvester and Wulle, were jointly indicted in the District Court of the United States for the Northern District of Ohio, in one count for burglarizing a post office at Mt. Blanchard, Ohio, in violation of the provisions of section 192 of the federal Penal Code, and in another count for stealing certain property of the United States from and out of that post office, in violation of the provisions of section 47 of the Penal Code. In due course of procedure they were tried, found guilty as charged, and sentenced by the court to be imprisoned in the United States penitentiary at Leavenworth, Kan., for different periods of time on each count. The

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

term of imprisonment on the second count was to begin at the expiration of the term imposed on the first count. Pursuant to their convictions and sentences they were in due time delivered into the custody of the appellant, who was warden of the penitentiary, and entered upon the service of their sentences.

Prior to the expiration of their terms of service on the first count they joined in a petition to the District Court of the United States for the District of Kansas for a writ of habeas corpus to secure their release from imprisonment at the expiration of the sentence imposed on the first count, and to be discharged from any imprisonment imposed on the second count. The warden filed his response, setting forth the facts already disclosed, with exhibits properly authenticating the same. Afterwards, on final hearing, the District Court ordered and adjudged that the petitioners be discharged at the expiration of their terms of imprisonment imposed on the first count of their indictment. From this order the warden appeals.

These are the assignment of errors:

"The court erred in holding that the sentences pronounced by the trial court upon the petitioners, and each of them, on the second count of the indictment, was and is illegal and void.

"The court erred in holding that said sentences so pronounced upon the petitioners, and each of them, placed the said petitioners, and each of them, twice in jeopardy for the same offense as that charged in the first count of the indictment.

"The court erred in granting the application for the writ of habeas corpus, and directing that the petitioners, and each of them, be released from imprisonment at the expiration of the term of imprisonment imposed upon the first count of the indictment."

Conceding, for the purpose of this case (as counsel for appellant apparently does), but not deciding it, that the petitions for writ of habeas corpus were not improperly applied for before the expiration of the term of imprisonment imposed on the first count conceded to be lawful, we proceed to a consideration of the question raised by the assignment of errors: Did the sentence for the crime of larceny, as charged in the second count of the indictment, amount to double jeopardy and was it for that reason illegal?

Section 192 reads as follows:

"Whoever shall forcibly break into or attempt to break into any post office, or any building used in whole or in part as a post office, with intent to commit in such post office, or building, or part thereof, so used, any larceny or other depredation, shall be fined not more than one thousand dollars and imprisoned not more than five years."

Section 47 reads as follows:

"Whoever shall embezzle, steal, or purloin any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, shall be fined not more than five thousand dollars, or imprisoned not more than five years, or both.”

[1] Counsel for appellees contend that the offense of larceny charged in the second count, based on section 47, was only a continuation of the offense of burglary charged in the first count based on section 192;

that the two were one continuing offense, and constituted only one crime, for which they could lawfully be punished. In support of their contention they rely upon the following cases: Halligan v. Wayne, 102 C. C. A. 410, 179 Fed. 112; Munson v. McClaughry, 117 C. C. A. 180, 198 Fed. 72, 42 L. R. A. (N. S.) 302; Stevens v. McClaughry, 125 C. C. A. 102, 207 Fed. 18, 51 L. R. A. (N. S.) 390; and O'Brien v. McClaughry, 126 C. C. A. 540, 209 Fed. 816. These cases give countenance to their contention, and upon their authority the learned trial judge made the order appealed from in this case.

After those cases were decided, and before the judgment appealed from was rendered in the District Court, the Supreme Court of the United States handed down its opinion in the case of Morgan v. Devine, 237 U. S. 632, 35 Sup. Ct. 712, 59 L. Ed. 1150, in which it disapproved of the doctrine announced in the cases supra, saying (Mr. Justice Day delivering the opinion of that court) as follows:

"We think that it is manifest that Congress in the enactment of these sections [190-192-section 190 being practically the same as section 47 involved in the present case] intended to describe separate and distinct offenses, for in section 190 [47] it is made an offense to steal any mail bag or other property belonging to the Post Office Department, irrespective of whether it was necessary, in order to reach the property, to forcibly break and enter into a post office building. The offense denounced by that section is complete when the property is stolen, if it belonged to the Post Office Department, however the larceny be attempted. Section 192 makes it an offense to forcibly break into or attempt to break into a post office, with intent to commit in such post office a larceny or other depredation. This offense is complete when the post office is forcibly broken into, with intent to steal or commit other depredation. It describes an offense distinct and apart from the larceny or embezzlement which is defined and made punishable under section 190 [47]. If the forcible entry into the post office has been accomplished with the intent to commit the offenses as described, or any one of them, the crime is complete, although the intent to steal or commit depredation in the post office building may have been frustrated or abandoned without accomplishment. And so, under section 190 [47], if the property is in fact stolen, it is immaterial how the post office was entered, whether by force or as a matter of right, or whether the building was entered into at all. It being within the competency of Congress to say what shall be offenses against the law, we think the purpose was manifest in these sections to create two offenses. Notwithstanding there is a difference in the adjudicated cases upon this subject, we think the better doctrine recognizes that, although the transaction may be in a sense continuous, the offenses are separate, and each complete in itself."

To the same effect is the case of Ebeling v. Morgan, 237 U. S. 625, 35 Sup. Ct. 710, 59 L. Ed. 1151.

On the authority of these cases, the contention of the appellees cannot be sustained. There was no double jeopardy in the sentence imposed on the second count. The two counts charged two separate offenses, and they were punishable separately according to the provisions of the sections of the statute quoted.

[2] The point was made by appellees' counsel in their brief that the conviction for the crime of larceny on the second count, based on section 47, was illegal and void, because the articles charged to have been stolen were postage stamps, for the stealing of which more apt provision is alleged to have been made in section 190.