341 F2d 914 Hamilton v. United States

341 F.2d 914

Malvin Chester HAMILTON, Appellant,
UNITED STATES of America, Appellee.

No. 21790.

United States Court of Appeals Fifth Circuit.

March 3, 1965.

Chester E. Wallace, Atlanta, Ga., for appellant.

Murray M. Wadsworth, Asst. U.S. Atty., Clinton Ashmore, U.S. Atty., Tallahassee, Fla., for appellee.

Before TUTTLE, Chief Judge, and GROOMS and McRAE, District Judges.


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This is an appeal from denial of relief on a Section 2255 motion based on the contention that the second of two consecutive sentences visited 'double jeopardy,' in the nature of double punishment on the appellant.


Appellant was convicted on two counts of a 'moonshine' indictment. One charged possession and the other charged selling. These two offenses are contained in a single section (26 U.S.C.A. 5604) of the statute.


Since proof of possession requires something less than proof of selling, we conclude that the appellant could be convicted and punished for both offenses even though the same untaxed whiskey was involved. See Perry v. United States, 5 Cir., 227 F.2d 129.


The judgment is affirmed.