Carroll v. United States, 10800.

Decision Date18 May 1949
Docket NumberNo. 10800.,10800.
PartiesCARROLL v. UNITED STATES.
CourtU.S. Court of Appeals — Sixth Circuit

Charles T. Carroll, alias "Chisel" on brief, pro se.

Ferdinand Powell, Jr., Knoxville, Tenn. (Otto T. Ault, Chattanooga, Tenn. and Ferdinand Powell, Jr., Knoxville, Tenn., on brief), for appellee.

Before HICKS, Chief Judge, and SIMONS and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

This is an appeal allowed in forma pauperis by the district court from the denial of appellant's motion for vacation and correction of sentence. On guilty plea, appellant was sentenced to five years' imprisonment on each of two counts of an indictment charging violation of section 409 of the Criminal Code, U.S.C.A., Title 18, section 409 now § 659.

The first count charged appellant with stealing goods from an interstate shipment of freight, and the second count charged him with having in his possession such goods, knowing the same to have been stolen. The sentences of imprisonment on the two counts were pronounced to run consecutively for an aggregate sentence of ten years.

The motion to vacate and to correct the sentence averred that the court did not ask appellant whether he wished counsel and did not appoint counsel for him, although he had requested the court to do so; and that he did not have counsel and did not enter a plea of guilty to count two of the indictment. The motion averred further that the charges in count one and count two of the indictment constitute only one offense; that Congress did not intend that two separate sentences be pronounced; and that the sentence on count two of the indictment is illegal under the statute and should be vacated.

The record directly and positively contradicts the averments of appellant respecting his guilty plea to the second count of the indictment and as to his request for counsel. This is not a habeas corpus proceeding and we must, therefore, accept the record of the judgment and commitment entered by the district court as accurate and truthful in the recital of what occurred when appellant was arraigned and sentenced. The judgment and Commitment entered in the district court reads as follows:

"On this 3rd day of January, 1944, came the United States Attorney, and the defendant Charles T. Carrol, alias `Chisel' appearing in proper person, and having been asked whether he desired counsel assigned by the Court, replied that he did not, and,

"The defendant having plead guilty of the offense charged in the indictment in the above-entitled cause, to wit: Stealing certain goods and chattels which were then and there moving as, and which were a part of and which constituted an interstate shipment of freight and possessing said goods and chattels in violation of Title 18, § 409, U.S.C. 18 U.S.C.A. § 409 as charged in the two counts of the indictment, and the defendant having been now asked whether he has anything to say why judgment should not be pronounced against him, and no sufficient cause to the contrary being shown or appearing to the Court, It is by the court

"Ordered and Adjudged that the defendant, having plead guilty of said offense, is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for the period of Five (5) Years from and after this date on each of the two counts of the indictment, said sentences to run consecutively. (An aggregate sentence of Ten (10) Years to be served.)

"It is further ordered that he pay the costs of the cause.

"It is Further Ordered that the Clerk deliver a certified copy of this judgment and commitment to the United States Marshal or other qualified officer and that the same shall serve as the commitment herein.

"(Signed) Geo. C. Taylor "United States District Judge."

The majority of the court is of opinion that stealing goods from an interstate shipment of freight and the possession of the same goods with knowledge that the same have been stolen constitute separate and distinct offenses under section 409 of the Criminal Code;1 and that it is, therefore, lawful to impose separate punishment for stealing and for felonious possession of the stolen goods. This has been the long accepted and applied interpretation of the statute by the United States District Courts, and has been upheld directly by three United States Courts of Appeals, namely, those for the Seventh Circuit, the Tenth Circuit, and the Fifth Circuit. United States v. Carpenter, 7 Cir., 1944, 143 F.2d 47. United States v. Dunbar, 7 Cir., 1945, 149 F.2d 151, certiorari denied, 325 U.S. 889, 65 S.Ct. 1577, 89 L.Ed. 2002; Carpenter v. Hudspeth, 10 Cir., 1940, 112 F.2d 126; Carroll v. Sanford, 5 Cir., 1948, 167 F.2d 878.

Judge Bratton pointed out in Carpenter v. Hudspeth, supra, that the statute clearly embraces several separate and distinct offenses: (1) breaking the seal of a railroad car containing an interstate shipment of freight; (2) entering the car with intent to commit larceny therein; (3) stealing merchandise from the car; and (4) concealing property with knowledge that it had been stolen from such a car; and that the power of Congress thus to provide that separate acts, though parts of a continuous transaction, shall constitute separate crimes cannot be doubted.

Judge Evan Evans, in United States v. Carpenter, supra, made a careful and logical analysis of the statute, even to the point of considering and weighing the argument of appellant in that case based upon the grammatical and structural composition of the statute and the placement of semicolons and commas. He skeletonized the statute into the separate crimes described therein, and stated that Congress had defined and penalized every conceivable form of act, every gradation of the process of burglarizing interstate commerce, when it enumerated the many acts intended to be made criminal. He said: "If two of the acts in any category were disclosed, two crimes were committed. It would be different if the terms were synonymous or the acts, one within the scope, or partial scope of the other, but each defines an act of a different nature. It is true that one who steals generally possesses, but the contrary is not inherently true. * * * We are unable to read the statute other than that Congress intended to make each and every separate act named, a separate crime. See Blockburger v....

To continue reading

Request your trial
10 cases
  • Torres v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 20 Octubre 1959
    ...each charged a separate and distinct crime, entirely apart from the others." 112 F.2d at pages 127-128. See also Carroll v. United States, 6 Cir., 1949, 174 F.2d 412; Carroll v. Sanford, 5 Cir., 1948, 167 F.2d 878; United States v. Dunbar, 7 Cir., 1945, 149 F.2d 151, certiorari denied, 325 ......
  • U.S. v. Solimine, 75-1867
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 29 Marzo 1976
    ...at 453.27 352 U.S. at 329, 77 S.Ct. at 407.28 See United States v. Jackson, 422 F.2d 975, 978 (6th Cir. 1970); Carroll v. United States, 174 F.2d 412, 413-15 (6th Cir. 1949), cert. denied, 338 U.S. 874, 70 S.Ct. 136, 94 L.Ed. 536 (1949).29 --- U.S. at ---, 96 S.Ct. at 1027, 44 U.S.L.W. at 4......
  • United States v. Jackson
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 11 Marzo 1970
    ...shipment and receiving the stolen property knowing it to have been stolen constitute separate offenses. Carroll v. United States, 174 F.2d 412, 413, 414 (6th Cir. 1949). 4. Sufficiency of the In testing the propriety of denial of a motion for acquittal charging insufficiency of the evidence......
  • Robinson v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 16 Junio 1964
    ...Thus, two separate offenses are thereby denounced as crimes. Cf. United States v. Wilson, 284 F.2d 407 (4 Cir. 1960); Carroll v. United States, 174 F.2d 412 (6 Cir. 1949), cert. den. 338 U.S. 874, 70 S.Ct. 136, 94 L.Ed. 536; United States v. Dunbar, 149 F.2d 151 (7 Cir. 1945). It is manifes......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT