Costner v. United States, 5119.

• Decision Date: 18 December 1943
• Docket Number: No. 5119.,5119.
• Citation: 139 F.2d 429
• Parties: COSTNER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

139 F.2d 429 (1943)

COSTNER v. UNITED STATES.

No. 5119.

Circuit Court of Appeals, Fourth Circuit.

December 18, 1943.

W. A. Hall, Jr., of Richmond, Va., for appellant.

Melva M. Graney, Atty., Department of Justice, of Washington, D.C. (Tom C. Clark, Asst. Atty. Gen., and Theron L. Caudle, U. S. Atty., of Wadesboro, N.C., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This appeal was taken from an order of the District Court passed on April 7, 1943 whereby the court denied appellant's motion to vacate a sentence of imprisonment imposed on April 2, 1934, and to enter a new judgment. This procedure, designed to test the validity of the sentence, was taken in accordance with the decision in Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392.

The appellant and others were indicted in 1934 under an indictment of twelve counts charging various offenses in connection with a robbery of the mail. We are concerned only with counts 1 and 2. Count 1 alleged that on November 15, 1933, while mail matter was being delivered from the railway station to the post office in Charlotte, North Carolina, the defendants assaulted the custodians thereof with intent to rob them of the mail matter; and count 2 alleged that the defendants at the same time robbed the custodians of the mail matter in their custody and, in effectuating the robbery, put their lives in jeopardy by the use of dangerous weapons. The appellant was convicted and sentenced to five years' imprisonment on count 1 and twenty-five years on count 2, the sentences to run consecutively. By his motion he attacked the validity of the five year sentence under count 1 and asked the court to vacate its judgment and to impose a new sentence for a term of twenty-five years.

The appellant contends that the five year sentence under count 1 of the indictment for assault with intent to rob was invalid because of the imposition of the sentence of twenty-five years on count 2 for the completed crime of robbery effected by putting the lives of the custodians in jeopardy by the use of dangerous weapons. Since the assault with intent to rob was committed at the same time as the robbery itself and constituted an essential part thereof, it is said that the five year sentence was invalid because it was imposed upon an ingredient of a crime for which the maximum penalty of twenty-five years for the whole offense was also exacted. The United States concedes that the five year sentence was void and should be stricken out, notwithstanding certain contrary prior decisions, because the language of the statute, interpreted in the light of its legislative history, does not manifest an intent to punish the putting of a life in jeopardy in the effectuation of a robbery of the mail as a separate crime distinct from the assault or the robbery which it comprehends. We have, therefore, only to determine whether this concession is justified under the language of the statute and the controlling decisions.

At the time of the conviction, the applicable statute, Act of March 4, 1909, Ch. 321, § 197, 35 Stat. 1126, § 197 of the Criminal Code, 18 U.S.C.A. § 320, provided as follows: "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."

It is immediately clear upon reading this statute that Congress intended to put an assault upon a custodian of mail, with intent to rob, and a completed robbery upon the same footing so far as punishment is concerned. The word "rob" is used in its common law sense, Harrison v. United States, 163 U.S. 140, 16 S.Ct. 961, 41 L. Ed. 104, that is, it involves the taking, animo furandi, and asportation of property from the person of another against his will by violence or putting him in fear. Congress evidently regarded the exercise of physical force with this intent as dangerous to the public welfare as the actual taking of the property which it is designed to accomplish, so that, whether successful or not, the same punishment may be imposed. But the idea that even in an extreme case Congress intended to authorize two punishments for the same unlawful conduct, that is, ten years for the assault with intent to rob, and ten years for the robbery, is too unreasonable to be seriously entertained; and the same observation applies if the assault with intent or the completed robbery is aggravated by wounding or putting the life of the custodian in jeopardy by dangerous weapons, for which a maximum penalty of twenty-five years is provided. In short, two grades of punishment were provided, one for the lesser and one for the greater crime in the alternative; and it cannot be supposed that the penalties are cumulative, for this would mean that in every case of an aggravated assault to rob, whether effective or not, a sentence of thirty-five years could be imposed although the reader of the statute learns that a maximum of twenty-five years may be exacted for such a crime.¹

Decisions inconsistent with this view support the conclusion reached by the court below. See Schultz v. Biddle, 8 Cir., 19 F.2d 478; Schultz v. Zerbst, 10 Cir., 73 F. 2d 668, and Sansone v. Zerbst, 10 Cir., 73 F.2d 670; cf. Colson v. Johnston, D.C.Cal., 35 F.Supp. 317. But these decisions do not discuss at all the manifest purpose of Congress which we have attempted to describe. They are based upon the rule established by decisions of the Supreme Court that Congress has power to prohibit each of several distinct and separate acts and to provide a separate punishment for each, although all may be inspired by the same criminal intent and comprised in the same transaction, provided that each of the offenses involves a distinct element not included in the others. Thus it was held in Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153, that the larceny of mail described in § 190 of the Criminal Code, 18 U.S.C.A. § 313, is a distinct crime from that of breaking into a post office with intent to commit larceny therein forbidden by § 192 of the Code, 18 U.S.C.A. § 315; and even though offenses against these sections are committed at the same time as part of the same transaction, they may be separately punished.

So also it was held in Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505, that a person might be punished under the Prohibition Act, 27 U.S.C.A. § 1 et seq., for possessing and then selling the same intoxicating liquor without violating the prohibition of the Fifth Amendment against the imposition of a double penalty. The court said (page 11 of 273 U.S., page 253 of 47 S.Ct., 71 L.Ed. 505): "The contention is that there was double punishment because the liquor which the defendants were convicted for having sold is the same that they were convicted for having possessed. But possessing and selling are distinct offenses. One may obviously possess without selling, and one may sell and cause to be delivered a thing of which he has never had possession, or one may have possession and later sell, as appears to have been done in this case. The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offense. There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction."

Various tests are suggested in these and other decisions to guide one in determining whether related unlawful acts must be treated as a single offense or as separate crimes separately punishable. It is said in Morgan v. Devine, 237 U.S. 632, 641, 35 S.Ct. 712, 59 L.Ed. 1153, that the test of identity of offenses is whether the same evidence is required to sustain them; if not, then the fact that both charges grow out of one transaction does not make a single offense where two are defined by the statutes. In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306, it is stated that when the same act or transaction constitutes a violation of two distinct statutory...