Purdom v. United States

• Citation: 249 F.2d 822
• Decision Date: 06 January 1958
• Docket Number: No. 5651.,5651.
• Parties: Jack Robert PURDOM, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

249 F.2d 822 (1957)

Jack Robert PURDOM, Appellant, v. UNITED STATES of America, Appellee.

No. 5651.

United States Court of Appeals Tenth Circuit.

October 14, 1957.

Writ of Certiorari Denied January 6, 1958.

Joseph P. Jenkins, Kansas City, Kan., for appellant.

Milton P. Beach, Asst. U. S. Atty., Kansas City, Kan. (William C. Farmer, U. S. Atty., Topeka, Kan., Charles W. Ward, Asst. U. S. Atty., Peabody, Kan., E. Edward Johnson, Asst. U. S. Atty., Topeka, Kan., and Wilbur G. Leonard, Asst. U. S. Atty., Council Grove, Kan., on the brief), for appellee.

Before BRATTON, Chief Judge, and PHILLIPS and BREITENSTEIN, Circuit Judges.

Writ of Certiorari Denied January 6, 1958. See 78 S.Ct. 341.

PHILLIPS, Circuit Judge.

An information containing three counts was filed against Purdom in the United States District Court for the District of Kansas on March 10, 1947. Count One charged that on January 9, 1947, Purdom entered the Ramona State Bank in the District of Kansas, an insured bank of the Federal Deposit Insurance Corporation, with the intent to commit larceny in such bank. Count Two charged that on the same date he did take and carry away with intent to steal the same, $591.95 in money belonging to such bank. Count Three charged that on the fourth day of January, 1947, he transported a stolen motor vehicle from Muskogee, Oklahoma, to Ramona, Kansas, and that he then knew the motor vehicle to have been stolen. Purdom entered a plea of guilty to each count. The court imposed a sentence of imprisonment for a term of 20 years on Count One and imprisonment for a term of 10 years on Count Two, to begin at the expiration of the sentence on Count One, and imprisonment for a term of 5 years on Count Three, to run concurrently with the sentences imposed on Counts One and Two.

On May 8, 1957, Purdom filed a motion to vacate and set aside the sentence imposed on Count One, on the ground that he was subject to imprisonment on Counts One and Two for not more than a term of 10 years.

On May 16, 1957, the trial judge granted the motion and sentenced Purdom nunc pro tunc to the custody of the Attorney General for a period of 20 years on Count One and set aside the plea of guilty on Count Two and the sentence on Count Two. The court further sentenced Purdom to imprisonment for a term of 5 years on Count Three, to run concurrently with the 20-year sentence imposed on Count One. From the judgment of the court imposing the last sentence, Purdom has appealed.

In Jerome v. United States, 318 U.S. 101, 102, 63 S.Ct. 483, 484, 87 L.Ed. 640, the Supreme Court reviewed the legislative history of the Act of May 18, 1934, 48 Stat. 783, 12 U.S.C.A. § 588(b) and the Act of August 24, 1937, 50 Stat. 749, 12 U.S.C.A. § 588(b), as follows:

"Prior to 1934 banks organized or operating under federal law were protected against embezzlement and like offenses by R.S. 5209, 40 Stat. 972, 12 U.S.C. § 592, 12 U.S.C.A. § 592. But such crimes as robbery, burglary, and larceny directed against such banks were punishable only under state law. By 1934 great concern had been expressed over interstate operations by gangsters against banks — activities with which local authorities were frequently unable to cope. H.Rep. No. 1461, 73d Cong., 2d Sess., p. 2. The Attorney General in response to that concern recommended legislation embracing certain new federal offenses. S. 2841, 73d Cong., 2d Sess. And see 78 Cong.Rec. 5738. Sec. 3 of that bill made it a federal crime to break into or attempt to break into such banks with intent to commit `any offense defined by this Act, or any felony under any law of the United States or under any law of the State, District, Territory, or possession\' in which the bank was located. Sec. 2 made it an offense to take or attempt to take money or property belonging to or in the possession of such a bank without its consent or with its consent obtained `by any trick, artifice, fraud, or false or fraudulent representation\'. This bill was reported favorably by the Senate Judiciary Committee (S.Rep. No. 537, 73d Cong., 2d Sess.) and passed the Senate. 78 Cong.Rec. 5738. The House Judiciary Committee, however, struck out § 2, dealing with larceny, and § 3, dealing with burglary. H.Rep. No. 1461, supra, p. 1. And the bill was finally enacted without them. But it retained the robbery provision now contained in the first clause of § 2 (a) of the Bank Robbery Act.

"In 1937 the Attorney General recommended the enlargement of the Bank Robbery Act `to include larceny and burglary of the banks protected by it. H.Rep. No. 732, 75th Cong,, 1st Sess., p. 1. The fact that the 1934 statute was limited to robbery was said to have produced `some incongruous results\' — a `striking instance\' of which was the case of a man who stole a large sum from a bank but who was not guilty of robbery because he did not display force or violence and did not put any one in fear. Id., pp. 1-2. The bill as introduced (H.R. 5900, 75th Cong., 1st Sess., 81 Cong.Rec. 2731) added to § 2(a) two new clauses — one defining larceny and the other making it a federal offense to enter or attempt to enter any bank with intent to commit therein `any larceny or other depredation\'. For reasons not disclosed in the legislative history, the House Judiciary Committee substituted `any felony or larceny\' for `any larceny or other depredation.\' H.Rep. No. 732, supra, p. 2. With that change and with an amendment to the larceny clause distinguishing between grand and petit larceny (81 Cong.Rec. 5376-5377), § 2(a) was enacted in its present form."

The Act of May 18, 1934, supra, defined the term "bank" as follows:

"That as used in this Act the term `bank\' includes any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States."

The pertinent provisions of the Act of August 24, 1937, supra, read as follows:

"That subsection (a) of section 2 of the Act of May 18, 1934, (48 Stat. 783, U.S.C., title 12, sec. 588b), be and the same is hereby, amended to read as follows:

"`(a) Whoever, by force and violence, or by putting in fear, feloniously takes, or feloniously attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank; or whoever shall enter or attempt to enter any bank, or any building used in whole or in part as a bank, with intent to commit in such bank or building, or part thereof, so used, any felony or larceny, shall be fined not more than $5,000 or imprisoned not more than twenty years, or both; or whoever shall take and carry away, with intent to steal or purloin, any property or money or any other thing of value exceeding $50 belonging to, or in the care, custody, control, management, or possession of any bank, shall be fined not more than $5,000 or imprisoned not more than ten years, or both; or whoever shall take and carry away, with intent to steal or purloin, any property or money or any other thing of value not exceeding $50 belonging to, or in the care, custody, control, management, or possession of any bank, shall be fined not more than $1,000 or imprisoned not more than one year, or both.\'"

As carried into Title 18 U.S.C., Crimes and Criminal Procedure, approved June 25, 1948, effective September 1, 1948, such provisions were amended to read as follows:

"§ 2113. Bank robbery and incidental crimes

"(a) Whoever, by force and violence, or by intimidation, takes or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank; or

"Whoever enters or attempts to enter any bank, or any building used in whole or in part as a bank, with intent to commit in such bank or building, or part thereof, so used, any felony affecting such bank and in violation of any statute of the United States, or any larceny —

"Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.

"(b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, shall be fined not more than $5,000 or imprisoned not more than ten years, or both; * * *."¹

In Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, the court construed the penalty provisions of § 2113(a), supra. Prince was convicted on a two-count indictment. The first count charged robbery of a Federally insured bank and the second count charged entering the bank with intent to commit a felony. He was sentenced to 20 years' imprisonment for the robbery and 15 years for the entry with intent to commit a felony, the two sentences to run consecutively. Thereafter, Prince filed a motion to vacate or correct the sentence. The trial court denied the motion and the Fifth Circuit affirmed. See Prince v. United States, 5 Cir., 230 F.2d 568. In Prince v. United States, 352 U.S. 322, 324-329, 77 S.Ct. 403, 405, the court said:

"Whether the crime of entering a bank with intent to commit a robbery is merged with the crime of robbery when the latter is consummated has puzzled the courts for several years. A conflict has arisen between the circuits. * * * The question of interpretation is a narrow one, and our decision should be correspondingly narrow. (Italics ours.)

"The original Bank Robbery Act was passed in 1934. It covered only robbery, robbery accompanied by an aggravated assault, and homicide perpetrated in committing a robbery or escaping thereafter. In 1937 the Attorney General requested that the Act be amended. In his letter proposing the bill, the Attorney General declared that `incongruous results\' had developed under the existing law. He cited as a

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