Warden

The appeal is from an order sustaining a demurrer to a petition for a writ of habeas corpus and dismissing the petition.

Tn April 1937 appellant pleaded guilty to an indictment containing six counts. Counts two to six charged the felonious passing and utterance of forged prescriptions for a narcotic drug, namely, morphine sulphate, with intent to defraud the United States, the prescriptions being allegedly presented to and filled by a druggist at Portland. Count one charged a conspiracy to execute, forge and titter prescriptions calling for the sale of this drug without payment of any tax.

On the plea of guilty the court imposed a sentence of two years on the conspiracy count and sentences of ten years on each of the other five counts, the latter to run concurrently with each other but consecutively with the two-year sentence on the conspiracy count. In the caption of the indictment appeared the legend “Indictment for Violation of Sections 88 and 72, Title 18, U.S.C.A.” The conspiracy statute, 18 U.S.C.A. § 88 , concededly authorizes the two-year sentence. The other statute mentioned, 18 U.S.C.A. § 72 , Criminal Code § 28, provides a maximum penalty of ten years; so the…