Byers v. United States, 3883.
| Decision Date | 06 July 1949 |
| Docket Number | No. 3883.,3883. |
| Citation | 175 F.2d 654 |
| Parties | BYERS v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John Edwin Byers, pro se.
Lester Luther, U. S. Atty and Eugene W. Davis, Asst. U. S. Atty, Topeka, Kan., for appellee.
Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.
This is an appeal from an order denying a motion to set aside judgments, convictions, and sentences in two criminal cases.
John Edwin Byers, the appellant, is confined in the United States Penitentiary at Leavenworth, Kansas, by authority of commitments which were duly issued following judgments after pleas of guilty to charges contained in two United States grand jury indictments. Each of these indictments charged appellant with the crime of armed robbery of certain named banks. He was sentenced on November 13, 1946, to a term of ten years imprisonment and a fine of $1,000.00 on each indictment. The two sentences were made to run concurrently. The aggregate sentence was subsequently reduced on petitioner's application to give credit for approximately eight months of time spent while awaiting trial. The first reduction made by the trial court was to nine years and four months; a second reduction was later made so that the final order was nine years, one month and ten days from the date of imposition of sentence, said order being entered on December 16, 1946.
On January 6, 1949, petitioner filed his motion to vacate, set aside, and correct the sentences pursuant to 28 U.S.C.A. § 2255, on the ground that the indictments were legally insufficient to charge an offense under the Federal Bank Robbery Act, 12 U.S.C.A. § 588b now 18 U.S.C.A. § 2113, and on the further ground that the sentences "are not tempered with consideration of the time served by petitioner in federal custody previous to trial * *." The trial court found specifically that the indictments were sufficient in law and held adversely to petitioner's application to vacate, set aside, and correct the sentences.
The indictments were drawn under 12 U.S.C.A. § 588(b). Subsection (a) of the above title makes it an offense to attempt to take from any person or persons by force and violence or by putting in fear, property or money or any other thing of value belonging to or in the care, custody, control, management or possession of any bank.
Subsection (b) provides that whoever in attempting to commit the offense defined in Subsection (a) assaults any person or puts in jeopardy the life of any person by the use of any dangerous weapon or device shall be fined not less than $1,000.00 nor more than $10,000.00, or imprisoned not less than five years nor more than twenty-five years, or both.
Petitioner's claim that the indictments were vague and indefinite and fail to state an offense is not well taken. The one indictment charges that, "On or about March 7, 1946, in the Third Division, District of Kansas, John Edwin Byers, by force and violence, feloniously took from the person of Van Covert Watson and Willian Crabtree, cashier and bookkeeper, the sum of $863.04 in money belonging to and in the care, custody and control of the First National Bank, LeRoy, Kansas, and in so taking said money did put in jeopardy the lives of said Van Covert Watson and William Crabtree by the use of a loaded Colt new service 44-40 revolver, a dangerous weapon."
The second indictment was similarly drawn, differing only as to names and dates, the bank being described as the First National Bank, Howard, Kansas.
The test of the sufficiency of the indictment on a motion to vacate a sentence is whether the indictment by any reasonable construction can be said to charge the offense for which the sentence was imposed. See Gould v. United States, 10 Cir., 173 F.2d 30. However, these indictments are sufficient no matter by what standard they are gaged. An indictment is sufficient under this statute if it shows, among other things, that the bank is one organized and operating under the laws of the United States....
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