Cite as Crapo v. Johnston, 144 F.2d 863 (9th Cir. 1944)

                   CRAPO v. JOHNSTON, Warden.

                           No. 10745.

            Circuit Court of Appeals, Ninth Circuit.

                         Aug. 23, 1944.

    Writ of Certiorari Denied Dec. 4, 1944. See 65 S.Ct. 267.

     Appeal from the District Court of the United States for the
Northern District of California, Southern Division; Michael
J. Roche, judge.

     Alton Crapo, in pro. per., for appellant.

Frank J. Hennessy, U. S. Atty., and Joseph Karesh, Asst.  U. S.
Atty., both of San Francisco, Cal., for appellee.

     Before WILBUR, STEPHENS, and HEALY, Circuit judges.

     WILBUR, Circuit judge.

     The appellant was tried on February 16, 1939, in the District
Court of the United States for the District of Kansas, First
Division, and found guilty on two counts contained in an indictment
charging in Count One the possession of an unregistered firearm,
December 20, 1936, and in Count Two with having in possession said
firearm, to-wit, a "Remington, sawed-off shot gun, Model Number 16,
11-12 gauge, repeating, Serial No. 130007, the said barrel of said
sawed-off shot gun being less than eighteen (18) inches in length,"
which had been transferred without the payment of  $200 tax on said
firearm and without the securing of stamps showing the payment of
said tax, "as provided by the Commissioner of Internal Revenue with
the approval of the Secretary of the Treasury of the United States,
and in failing to affix said stamps to the order for such firearms
as provided by law," etc.

     Defendant was convicted and sentenced to three years on Count
One and five years on Count Two, said sentences to run con-
secutively.  He was placed on probation on the second count for a
period of five years.  On August 3, 1942, the probation was, re-
voked and the defendant sentenced, to a term of five years; he was
transferred to the federal penitentiary at Alcatraz, and petitioned
the United States District Court for the Northern District, of
California, Southern Division, for release upon petition for writ
of habeas corpus, alleging the foregoing facts.

     Appellant claims that the court had no jurisdiction to render
the sentence upon the second count or in the alternative that such
sentence constituted double jeopardy being for the same offense
alleged in the first count.  The sentence on the first count having
been served he asked for his discharge.  An order to  show cause
was issued by the District Court and a demurrer was interposed by
the respondent which was sustained by the trial court and the
petitioner was remanded to the custody of respondent and petitioner
appealed.

     It is true that each count alleges the possession of the same
firearm but the statute makes the possession illegal for each of,
two reasons; therefore, the offenses were different, requiring
different proof, although the weapon was the same.  It a common
occurrence in federal legislation concerning the definition and
punishment of crime to make separate crimes of incidents involved
in what might otherwise be considered a single transactions      
In dealing with such a legislative situation the rule has been
initiated and is clearly established that if different evidence is
required to establish the crime alleged in different counts, that
each count, to conform to the statute, states a separate crime.

     There is no merit in the appellant's claim that the trial
court is without jurisdiction, or that he has suffered double
jeopardy for the same offense, although the latter question cannot
be raised by habeas corpus.

     Affirmed.