Durrett v. United States, 9219.

• Decision Date: 13 December 1939
• Docket Number: No. 9219.,9219.
• Parties: DURRETT v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

107 F.2d 438 (1939)

DURRETT v. UNITED STATES.

No. 9219.

Circuit Court of Appeals, Fifth Circuit.

November 22, 1939.

Rehearing Denied December 13, 1939.

M. S. Ross, of Nashville, Tenn., for appellant.

Jim C. Smith, U. S. Atty., of Birmingham, Ala., for appellee.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HOLMES, Circuit Judge.

This appeal is from separate sentences aggregating sixty years' imprisonment on four counts of an indictment charging violations of the act of May 18, 1934, 12 U.S.C.A. § 588b, as amended by the act of August 24, 1937, c. 747, 50 Stat. 749. On the record before us, no question is presented except the sufficiency of the indictment to sustain the sentences of twenty years each on the first and second counts, the appellant conceding that the single sentence of twenty years on counts three and four is valid.

Omitting formal parts, the first count, in substance, charged appellant with entering a member bank of the Federal Reserve System with intent to commit larceny therein; the second count charged him with attempting to take from the person of the president of said bank a named sum of money; count three charged that the defendant, in committing the offense described in the second count, did put in jeopardy the life of the president of said bank by the use of a dangerous device, namely, a lethal bomb; the fourth count is identical with the third, but as only one sentence, which is for a term less than either count would support, was imposed on both, no attack is made thereon in this court.

The appellant contends that counts one and two were merged into counts three and four, and that the judgment of the court below should not be permitted to stand for a longer term of imprisonment than twenty years. In his brief, the attorney for appellant says:

"We respectfully submit, therefore, that the sentence of twenty years under counts three and four of this indictment was valid and the defendant is serving that sentence. The other two sentences were in effect double, or rather triple, punishment in violation of the Fifth Amendment to the Constitution of the United States, U.S.C.A., and the attempt to do that was to that extent void. And we ask this Court to so hold. We ask nothing more."

This case is before us on the indictment, plea of guilty to each count thereof, and the judgment imposing sentences, as aforesaid, to run consecutively. With respect to count one, there is no indication of a merger, as there is nothing in the record to show that the appellant put in jeopardy the life of any person by the use of a dangerous weapon or device when he entered the bank with the intent of committing a larceny therein; but conceding that he did commit the crime of so entering the bank in the aggravated manner and form denounced in subsection (b) of said section 588b, he was not charged therewith in the indictment, but was charged with the lesser offense denounced in subsection (a), plead guilty thereto, was sentenced thereunder, and should not now be heard to say that his offense was more serious than the one to which he plead guilty.

When the same act or acts constitute infractions of two or more prohibitions, there may be an offense for each provision violated,¹ and the successive steps of a transaction may be punished separately or collectively.² The contention of appellant that Congress may not punish the successive steps of a transaction which it may prohibit is contrary to the federal rule.³ We think the offense charged in count one is separate and distinct from any in the...