U.S. v. Smith, 76-1262
| Decision Date | 28 April 1977 |
| Docket Number | No. 76-1262,76-1262 |
| Citation | 553 F.2d 1239 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Harry Eugene SMITH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John O. Martin, Asst. Federal Public Defender, Kansas City, Kan. (Leonard D. Munker, Federal Public Defender, Kansas City, Kan., with him on the brief), for defendant-appellant.
Richard L. Hathaway, Asst. U.S. Atty., Kansas City, Kan. (E. Edward Johnson, U.S. Atty., Topeka, Kan., with him on the brief), for plaintiff-appellee.
Before LEWIS, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.
Defendant Smith was charged in a one-count indictment with an "attempt to rob" the proprietress of Postal Contract Station No. 13 in Kansas City, Kansas, of money belonging to the United States in violation of 18 U.S.C. § 2114. Following a jury trial Smith was convicted upon a verdict of guilty and sentenced to a term of not more than eight years imprisonment. On appeal Smith challenges the sufficiency of the indictment and jury instructions on grounds the offense proscribed by section 2114 is "assault with intent to rob" and that an "attempt to rob" is not a crime under any statute of the United States.
The issue presented is one of first impression in this circuit and requires us to construe the operative provisions of the charging statute:
Whoever assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs any such person of mail matter, or of any money, or other property of the United States, shall, for the first offense, be imprisoned not more than ten years 18 U.S.C. § 2114. For purposes of the present analysis the quoted language may be read as specifying two ways in which the proscribed offense may be committed: (1) by an assault with intent to rob, steal, or purloin; or(2) by a completed robbery. Since a completed robbery was neither charged nor proved in the case at bar, the narrow question presented is whether an assault with intent to rob, steal, or purloin is adequately charged by an indictment alleging an attempt to rob.
In Aderhold v. Schiltz, 5 Cir., 73 F.2d 381, this precise question was considered by the Fifth Circuit under the statutory predecessor of section 2114 which, for purposes of the issue under consideration, was virtually identical to the present version. Rejecting the government's argument that an attempt to rob and an assault with intent to rob are synonymous terms, the Aderhold court held: Id. See also, United States v. Spain, E.D.Ill., 32 F.Supp. 28, 30 ( ).
Although not directly on point, the opinion of the District of Columbia Circuit in United States v. Spears, 145 U.S.App.D.C. 284, 449 F.2d 946, is also instructive. In reviewing the legislative history of section 2114 since its origin in the original Post Office Act of 1792, Act of February 20, 1792, ch. 7, § 1, 1 Stat. 232, the Spears court noted:
By 1799, then, the essential elements of the offenses now codified in 18 U.S.C. § 2114 had been enacted. Except for the penalties involved, the elements have been little changed from that time until the present.
The "attempt" portion of the 1799 statute is of particular importance in this case. Though it has been modified several times over the years, the changes have been essentially in form and not in substance. To begin with, the 1799 statute did not proscribe all attempts to rob mail carriers; rather it said that
if any person shall attempt to rob the mail of the United States, by falling on the person having custody thereof, shooting at him or his horses, or threatening him with dangerous weapons, and the robbery is not effected . . . (he) shall be punished. . . .
United States v. Spears, supra at 951 (footnotes omitted). Although subsequent versions of the statute substituted the term "assault" for the phrase "by falling on the person having custody (of the mail), shooting at him or his horses, or threatening him with dangerous weapons," the Spears cou...
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...the majority overrules the contrary holdings in United States v. Brown, 995 F.2d 1493, 1504 (10th Cir. 1993) and United States v. Smith, 553 F.2d 1239, 1240-42 (10th Cir. 1977). Judge Baldock's opinion (joined by Chief Judge Tacha and Judges Brorby, Kelly, Briscoe, and Murphy) explains the ......
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