Summary
noting that "it is not actual punishment imposed but that which the statute authorizes which determines whether a crime is a felony or a misdemeanor"
Summary of this case from United States v. SmithOpinion
No. 12410.
June 4, 1955.
Claude C. Barde, in pro. per., Leavenworth, Kan., William H. Bur, Cincinnati, Ohio (appointed by the court), for appellant.
Wendell A. Miles, Grand Rapids, Mich., for appellee.
Before SIMONS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.
Appellant seeks review of an order of the district court denying his motion to correct sentence. His appeal is based upon the claim that the actual punishment imposed rather than the maximum punishment provided by statute determines whether a given offense is a felony or a misdemeanor. The law is to the contrary. "Congress by statute passed in 1909, Sec. 541, 18 U.S.C.A., declared: `All offenses which may be punished by death or imprisonment for a term exceeding one year shall be deemed felonies. All other offenses shall be deemed misdemeanors', and it has been uniformly held that it is not the actual punishment imposed but that which the statute authorizes which determines whether a crime is a felony or a misdemeanor." Cartwright v. United States, 5 Cir., 146 F.2d 133, 135. There was nothing unlawful in the sentence of the court that each of the sentences was to be served consecutively rather than concurrently, and gives no rise to any meritorious contention that such a sentence constitutes cruel and unusual punishment in violation of the Constitution, as claimed by appellant.
The order of the district court is affirmed.