Blackwood v. United States, 12501.
| Citation | 138 F.2d 461 |
| Decision Date | 26 October 1943 |
| Docket Number | No. 12501.,12501. |
| Parties | BLACKWOOD v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James A. Bradley and McKay & McKay, all of Kennett, Mo., for appellant.
Harry C. Blanton, U. S. Atty., of Sikeston, Mo., for appellee.
Before WOODROUGH, THOMAS, and JOHNSEN, Circuit Judges.
This is an appeal from an order denying a motion, filed in 1942, to vacate or correct a twenty-five-year sentence imposed upon appellant after a trial and conviction by a jury in 1931.
The motion alleges, as its general basis, that "the indictment charges no offense against any statute of the United States, which authorizes a penalty in excess of ten years." Appellant has been committed to a federal penitentiary since his sentence in 1931, and he contends that he has thus served the full time for which he legally could have been sentenced under the indictment, and that the balance of his sentence is void.
The indictment was one under section 197 of the Criminal Code, 35 Stat. 1126, 18 U.S.C.A. § 320, which at that time provided: "Whoever shall assault any person having lawful charge, control, or custody of any mail matter, with intent to rob, steal, or purloin such mail matter or any part thereof, or shall rob any such person of such mail or any part thereof, shall, for a first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery, he shall wound the person having custody of the mail, or put his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned twenty-five years."
The indictment was in a single count and charged that, on or about October 23, 1930, appellant and two other named defendants assaulted the United States postmaster at Gibson, Missouri, who at the time had "lawful charge, control, custody and possession of the United States mail matter, in the lawful discharge of his duties as such postmaster for the United States Post Office Department, said assault having been committed with the unlawful and felonious intent then and there in them, the said Wesley H. Wright, Ira Blackwood and Lemma F. Brooks, and each of them, to rob, steal, and purloin said mail matter, post office money and United States postage stamps then and there in charge, control, custody and possession of the said Thomas W. Curtis, postmaster as aforesaid, and in attempting to effect such robbery, they, the said Wesley H. Wright, Ira Blackwood and Lemma F. Brooks, and each of them, did put the life of the said Thomas W. Curtis in jeopardy by the use of dangerous weapons, to-wit, two pieces of two-inch iron pipe of the lengths of twelve and one-half inches (12½ inches) and fourteen and one-half inches (14½ inches), respectively; contrary to the form of the statutes," etc.
The substance of appellant's contentions is that the indictment did not charge an offense against him under the second portion of section 197 of the Criminal Code, quoted above; that, in order to charge an offense under this portion of the statute, it was necessary for the indictment to allege that an actual robbery of mail matter had occurred and that it was accomplished by wounding the person having custody thereof or by putting his life in jeopardy by the use of a dangerous weapon; that, even in such a situation, the indictment could not give the court jurisdiction under this portion of the statute unless it specifically described the mail matter of which the custodian was robbed; that, since the indictment neither alleged that a robbery had been committed nor described the mail matter involved, the court had utterly no jurisdiction to convict or impose a sentence under the second portion of the statute; that the only offense legally charged in the indictment, therefore, was an ordinary assault with intent to rob, under the first portion of the statute; that the maximum penalty under this portion of the statute was ten-years imprisonment, and that all of appellant's sentence in excess of ten years was accordingly void.
These contentions are wholly without merit, as the trial court held in denying appellant's motion generally and in refusing to allow him to prosecute an appeal in forma pauperis.
A mere reading of section 197 of the Criminal Code clearly shows that the first portion thereof provides for two offenses, (1) the attempt to rob a custodian of any mail matter by means of an assault, and (2) the robbing of any mail matter from such a custodian, with or without an assault; that the second portion of the statute...
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...upon the grounds that it was without merit and that the court was without authority to disturb the sentence. Compare Blackwood v. United States, 8 Cir., 138 F.2d 461. On August 16, 1943, the appellant filed the present motion to vacate or modify the sentence. He asserts in his motion that t......
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...States" was taken. Lawrence, 699 F.2d at 701; see Johnston v. United States, 145 F.2d 137 (9th Cir.1944) (same); Blackwood v. United States, 138 F.2d 461 (8th Cir.1943) Here, the specified person in the indictment was a "postmaster," and there was proof at trial that the victim of the assau......
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...in connection with a single armed robbery of one custodian, it is not necessary to consider in this case. But see Blackwood v. United States, 8 Cir., 138 F.2d 461, 462-463; and compare, Costner v. United States, 4 Cir., 139 F.2d 429, 432-433, and Ekberg v. United States, 1 Cir., 167 F.2d 38......
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