Remaley

This is an appeal from an order denying petitioner’s application for writ of habeas corpus. A previous application having been 'denied, the District Judge, in the exercise of his discretion so to do (Salinger v. Loisel, 265 U.S. 224 , 44 S.Ct. 519 , 68 L.Ed. 989 ), denied the second and similar application.

The petitioner was sentenced to imprisonment for two years on each of three counts of an indictment, said sentences to run consecutively. He has now served the first two terms, being for four years less credits for good conduct, and now seeks release on habeas corpus on the ground that the third count in the indictment is for the same offense as the second count and that, therefore, he has been placed twice in jeopardy for the same offense. At the time of the former petition for writ of habeas corpus which was denied by the district court it appears that the. petitioner had not yet served the part of the sentence which he conceded to be lawful.

Under such circumstances an appeal would have been of no avail because he was not entitled to raise the question of double jeopardy until he had served the part of the sentence which he concedes to be lawful.

It is contended by the…