Hardy v. United States
| Decision Date | 30 June 1961 |
| Docket Number | No. 16455.,16455. |
| Citation | 292 F.2d 192 |
| Parties | Yancy Douglas HARDY, Appellant. v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Martin Schiff, Jr., St. Louis, Mo., for appellant; Yancy Douglas Hardy, pro se, and H. Jackson Daniel, St. Louis, Mo., with him on the brief.
William R. Crary, Asst. U. S. Atty., Sioux City, Iowa, for appellee; F. E. Van Alstine, U. S. Atty., Sioux City, Iowa, on the brief.
Before JOHNSEN, Chief Judge, and VAN OOSTERHOUT and BLACKMUN, Circuit Judges.
Appellant was convicted in 1951 on separate charges (1) of having entered a federally insured bank with intent to commit larceny therein, thereby violating 18 U.S.C. § 2113(a), and (2) of having committed larceny against the bank of money and property exceeding $100 in value, thereby violating § 2113 (b). He was given a sentence of 20 years on the first count and a sentence of 10 years on the second, with the sentences to run concurrently.
He appealed from the judgment of conviction and we affirmed, 8 Cir., 199 F.2d 704, but he did not in that proceeding raise any question as to the court's right to impose two sentences upon him. He waited until he had been confined the period necessary for a 10-year term and then filed a motion to have his 20-year sentence set aside as being illegal. The court denied his motion but on its own motion vacated the 10-year sentence.
The court's action as to the 10-year sentence was in conformity with what we had in 1957 directed to be done in the case of appellant's associate in the crime, Kitts v. United States, 8 Cir., 243 F.2d 883. In appellant's view, however, we did not in the Kitts case make proper interpretation and application of the decision of the Supreme Court in Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370.
Appellant would have us read the Prince case as holding that, where a bank is entered with larcenous intent, in violation of § 2113(a), and the larceny is accomplished, so that a violation of § 2113(b) has occurred, the unlawful entry becomes so merged into the consummated larceny as to lose its identity for legal purposes as a criminal offense and therefore not to be capable of being made the subject of a charge of § 2113(a) violation.
A year after the Kitts case, we had occasion to deal with the question again in La Duke v. United States, 8 Cir., 253 F.2d 387, where we similarly permitted a sentence of 20 years to stand on a conviction of having entered a bank with intent to commit larceny therein, in a situation where it was conceded that the larceny had been consummated and a violation of § 2113(b) had accordingly occurred. While in that case the Government had prosecuted only for the offense of unlawful entry, it would seem doubtful whether such a charge would be entitled to be made, if the consummation of the larceny had to be regarded as occasioning such a merger that the factual elements involved could have but one legal significance, so that the unlawful entry thus would be deprived of any separate violative identity.
The effect of our decision in the Kitts and La Duke cases is that the incidents of entering a bank with intent to commit larceny and of engaging in larceny therein are violations of two distinct statutory provisions; that there is nothing in the language or operability of these provisions to suggest that either incident, where both have been present in a situation, was intended to be deprived of its identity or status as a basis for making violative charges; but that, in respect to the imposing of punishment on them, they are so related in their nature and object that, under the doctrine of the Prince case, sentence may be meted out on only one of them, within the choice which the trial court deems appropriate in the circumstances.
The opinion in the Prince case recognized that it manifestly was the purpose of Congress, by the statutory provisions involved, to establish more than one violative offense. "But in doing so there was no indication that Congress intended also to pyramid the penalties." 352 U.S. at page 327; 77 S.Ct. at page 406.
This, it seems to us, represents the crux of the Prince decision. As we indicated in the La Duke case, we do...
To continue reading
Request your trial
-
United States v. Corson
...Cir.); Durrett v. United States, 107 F.2d 438 (5th Cir. 1939). 5 Sawyer v. United States, 312 F.2d 24 (8th Cir. 1963); Hardy v. United States, 292 F.2d 192 (8th Cir. 1961); United States v. Leather, 271 F.2d 80 (7th Cir. 1959); Counts v. United States, 263 F.2d 603 (5th Cir. 1959); United S......
-
U.S. v. Haas, 07-CR-26-LRR.
...of offenses" approach, under which "only a single conviction can be allowed to stand." Id. at 575 (citations omitted). Hardy v. United States, 292 F.2d 192 (8th Cir.1961) is the seminal case.3 The defendant in Hardy was convicted on one count of § 2113(a) and one count of § 2113(b). 292 F.2......
-
Jones v. Thomas
... ... Bozza v. United States, 330 U.S. 160, 166-167, 67 S.Ct. 645, 648-649, 91 L.Ed. 818. Pp. 380-387 ... See Hardy v ... Page 387 ... United States, 292 F.2d 192 (CA8 1961); United States v. Leather, 271 ... ...
-
Wright v. U.S.
...the defendant to consecutive sentences, not, as in the case at bar, to concurrent sentences. Later, however, in Hardy v. United States, 292 F.2d 192 (8th Cir. 1961), the same court made its position clear in regard to cases, such as the case before us, where concurrent sentences are imposed......