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In re SNOW.

Circuit Court of Appeals, Ninth Circuit

Feb. 9, 1945.

Cecil Snow in pro. per.

No other appearances were entered.

Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.

WILBUR, Circuit Judge.

Cecil Snow, who is incarcerated in the federal penitentiary at Alcatraz, claiming that he has served his sentences, sought release by petition for habeas corpus to the United States District Court for the Northern District of California. The 'petition was dismissed. He sought to appeal in forma pauperis. The District Court denied his application, certifying that “the appeal is so frivolous as to show that it was not taken in good faith”. The right to proceed in forma pauperis is denied by the act of Congress (28 U.S.C.A. § 832) where such a certificate is made by the District Court. To overcome this obstacle to his appeal he seeks a review of the action of the District Court in making such certificate. He asks that he be allowed to pursue this review in this couft in forma pauperis.

The statute is plain. It has been uniformly interpreted to deny the privilege of proceeding on appeal without the payment of costs to cases where there is no merit. Where the appeal is so devoid of merit in the opinion of the trial court as to justify his certificate of a lack of good faith in the appeal, there is no provision for a review of his action in so certifying. The result is that he must pay -the costs required by law on such appeal. It follows that the attempt to review the certificate of the trial judge is futile. His application to this court for leave to proceed here in forma pauperis must also be based upon some merit in the application. There is none, for the reason stated.

Furthermore, there is no merit in this proposed appeal from the denial of release on the petition for habeas corpus. The petition for writ of habeas corpus was based upon the claim that a larceny of government property used by or belonging to the Postoffice Department (18 U.S.C.A. § 313) and a larceny of mail matter therein (18 U.S.C.A. § 317) following a burglarious entry, constitutes but one offense for larceny and one offense for such entry (18 U.S.C.A. § 315) and, consequently, he need not serve the five year sentence imposed upon him for the theft of mail matter.

This court has already decided the question and has held that the offenses for which appellant has been sentenced are separate and distinct offenses. O’Brien v. Squier, 133 F.2d 123, 124; referring to 18 U.S.C.A. §§ 313-317, we there said: “The *1007purposes of the two sections are different, § 313 being designed to protect the property of the Post Office Department, and § 317 being designed to protect the individual items constituting the mails. Consequently, the offense charged in the first count was separate and distinct from that charged in the third count, and the sentences imposed thereunder are valid.” See also, Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153; see also, Snow v. Roche, 9 Cir., 143 F.2d 718.

Application denied.

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