Carroll v. United States, 10800.
Decision Date | 18 May 1949 |
Docket Number | No. 10800.,10800. |
Parties | CARROLL v. UNITED STATES. |
Court | U.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.
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:
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: ...
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