Samuel J. Johnson v. Lake F. Russell, Warden, Etc. , 420 F.2d 697 ( 1970 )

420 F.2d 697

Samuel J. JOHNSON, Petitioner-Appellant,
v.
Lake F. RUSSELL, Warden, etc., Respondent-Appellee.

No. 19498.

United States Court of Appeals Sixth Circuit.

January 28, 1970.

Samuel J. Johnson, in pro. per.

Elmer D. Davies, Jr., Asst. Atty. Gen. of Tennessee, Nashville, Tenn., on brief, for appellee; David M. Pack, Atty. Gen. of Tennessee, of counsel.

Before CELEBREZZE and COMBS, Circuit Judges and O'SULLIVAN, Senior Circuit Judge.

PER CURIAM.

1

This is an appeal from an order of the United States District Court for the Eastern District of Tennessee, Southern Division, denying the Appellant's petition for a writ of habeas corpus.

2

In three separate proceedings, the Appellant was convicted by a jury of receiving and concealing three stolen automobiles in violation of Section 39-4217, Tenn.Code Ann. He was acquitted on three other counts charging larceny of those same automobiles. Section 39-4203, Tenn.Code Ann.

3

The Appellant argues that, having been acquitted of larceny, it put him in double jeopardy to be convicted for receiving and concealing. See Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). This argument is without merit, since the offense of larceny is separate and distinct from the offense of receiving and concealing under Tennessee law. Peek v. State, 213 Tenn. 323, 375 S.W.2d 863 (1964). Therefore, the Appellant's Fifth and Fourteenth Amendment rights have not been impaired.

4

We find the Appellant's other arguments to be without merit.

5

The order of the District Court is affirmed.