Holbrook v. Hunter, 3100.
| Decision Date | 23 April 1945 |
| Docket Number | No. 3100.,3100. |
| Parties | HOLBROOK v. HUNTER, Warden. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Archie James Holbrook, pro se.
Eugene W. Davis, Asst. U. S. Atty., of Topeka, Kan., for appellee.
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
This is an appeal from an order denying a writ of habeas corpus.
An indictment containing two counts was returned against petitioner, Holbrook, and another in the District Court of the United States for the Western District of Missouri, Southern Division. Each count charged a violation of 12 U.S.C.A. § 588b, the pertinent provisions of which read:
The first count of the indictment alleged that petitioner and another, on November 29, 1937, in the Southern Division of the Western District of Missouri, by force and violence and by putting in fear Tom Watkins, cashier, Leslie Hunt, bookkeeper, Gail Coy Brown and Bess Long, clerks, and Lizzie Luner, paying teller, of the Citizens Bank of Springfield, Missouri, took and carried away $13,355, lawful money of the United States, of such bank; that such bank was then and there a banking corporation, engaged in the general banking business, and a member of the Federal Deposit Insurance Corporation; and that the means, force, and violence employed by petitioner and his codefendant and by which such officers, agents, and employees of such bank were put in fear of their lives were the use of shotguns and revolvers which petitioner and his codefendant pointed at such officers, agents, and employees.
The second count charged that at the same time and place, petitioner and his codefendant, by force and violence and with the use of shotguns and revolvers, which were dangerous and deadly weapons, and by pointing such shotguns and revolvers and brandishing them in a menacing manner at such officers, agents, and employees, did put in jeopardy the lives of such officers, agents, and employees, and did take and carry away $13,355, lawful money of the United States, of such bank.
The petitioner pleaded guilty to both counts of the indictment. The court sentenced him to a term of 20 years on the first count and 5 years on the second count, to run consecutively.
After serving approximately five years, petitioner filed a motion in the District Court of the United States for the Western District of Missouri to vacate the 20-year sentence on the ground that the two counts charged a single offense, and that the sentence on the first count was void. From an order denying the motion, the petitioner appealed to the Circuit Court of Appeals for the Eighth Circuit. That court remanded the case with directions to deny the motion to vacate the 20-year sentence on the first count but to vacate the 5-year sentence on the second count. See Holbrook v. United States, 8 Cir., 136 F.2d 649. On remand, the District Court entered orders in accordance with the directions of the Circuit Court of Appeals.
After serving more than five years, petitioner commenced this proceeding seeking discharge on habeas corpus.
Subsection (a), supra, creates four separate offenses. Subsection (b), supra, does not create a separate and distinct offense, but merely provides for an increased punishment...
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