Barringer v. United States, 21020.
| Decision Date | 12 March 1968 |
| Docket Number | No. 21020.,21020. |
| Citation | 130 US App. DC 186,399 F.2d 557 |
| Parties | John L. BARRINGER, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. J. Bruce Kellison, Washington, D. C. (appointed by this court) for appellant. Mr. Francis T. Coleman, Jr., Washington, D. C., also entered an appearance for appellant.
Mr. James E. Kelley, Jr., Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker and Nicholas Nunzio, Assistant United States Attorneys, were on the brief, for appellee.
Before WRIGHT, McGOWAN and TAMM, Circuit Judges.
Certiorari Denied January 20, 1969. See 89 S.Ct. 697.
With the help of an accomplice, appellant, armed with a gun, entered a corner grocery store where they confronted the proprietor and his wife with the gun. They obtained $15.00 from the proprietor's pocket, and $35.00 from the cash register, $19.00 of which was delivered by the wife at the husband's direction. In the course of trying to effect his escape in the street outside the store after the robbery was completed, appellant shot and wounded a policeman.
The indictment charged, in separate counts, robbery of the owner and robbery of his wife. It also contained two counts of assault with a dangerous weapon on the proprietor and his wife, assault on a member of the police force with a dangerous weapon, assault with intent to kill, malicious destruction of another's movable property, and the carrying of a concealed weapon. Upon conviction on all counts, an intricate pattern of consecutive and concurrent sentences was imposed, resulting in a total sentence of from 12 to 36 years.
The only serious questions put forward on this appeal relate to the robbery convictions. It is urged, first, that the proof justified conviction of robbery only in the case of the proprietor. Our examination of the record, however, indicates that the record supports conviction for robbing the wife as well. The second issue is that of whether consecutive sentences could be validly imposed in respect of these two counts. Unless remanded for resentencing, see Davenport v. United States, 122 U.S.App.D.C. 344, 353 F.2d 882 (1965), the allowance of this claim of error would result in a total sentence of from 9 to 27 years.
We are not persuaded that the rule of lenity necessitates the invalidation of these consecutive sentences. Appellant has placed primary reliance on Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), where the Supreme Court nullified...
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