Holiday v. United States, 12304.

• Decision Date: 12 October 1942
• Docket Number: No. 12304.,12304.
• Parties: HOLIDAY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

130 F.2d 988 (1942)

HOLIDAY v. UNITED STATES.

No. 12304.

Circuit Court of Appeals, Eighth Circuit.

October 12, 1942.

Forrest Holiday, pro se.

P. W. Lanier, U. S. Atty., of Fargo, N. D., for appellee.

Before SANBORN, THOMAS, and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

The question for decision is whether the District Court erred in sustaining a sentence of fifteen years imprisonment imposed under the second count of an indictment charging, in two counts, the forcible robbery of an insured bank, and in vacating a sentence of ten years imprisonment imposed under the first count of the indictment.

Forrest Holiday and others, on September 24, 1936, were indicted in the United States District Court for the District of North Dakota, under § 2 of the Act of May 18, 1934, 48 Stat. 783, as amended by the Act of August 23, 1935, § 333, 49 Stat. 720, 12 U.S.C.A. § 588b, for having robbed, by force and violence, the Farmers State Bank of Maddock, North Dakota, an insured bank. The indictment contained two counts. The first count charged the defendants with robbing the bank by force and violence and by putting in fear certain named persons who were in charge of the bank. The second count charged the defendants with the same robbery, and alleged that, in committing it, they, by the use of a dangerous weapon, put in jeopardy the lives of the persons in charge of the bank. The first count alleged the robbery as defined in subsection (a) of § 588b, 12 U.S.C.A., and the second count alleged the robbery as defined in subsection (b) of § 588b.

Holiday was arraigned on October 13, 1936, and entered a plea of guilty to the indictment. The judgment and sentence of the court was that he be imprisoned for ten years under the first count and for fifteen years under the second count, the sentences to run consecutively — the sentence imposed under the second count to commence at the expiration of the sentence imposed under the first count. Holiday entered upon the execution of his sentence and is now confined in the Alcatraz Penitentiary.

On March 5, 1940, this Court, in Hewitt v. United States, 110 F.2d 1, 11, certiorari denied 310 U.S. 641, 60 S.Ct. 1089, 84 L.Ed. 1409, decided that an indictment such as that here in question, for the purpose of sentence, charged but one offense. Hewitt had been convicted upon both counts of an indictment similar to that returned against Holiday. The trial court in Hewitt's case had imposed a sentence of twenty years under the first count and a sentence of twenty-five years under the second count, the sentences to run consecutively. We ruled that no sentence should have been imposed under the first count, and affirmed the sentence of twenty-five years imposed under the second count. On January 18, 1941, this Court in Garrison et al. v. Reeves, 116 F.2d 978, decided that Garrison (a codefendant of Hewitt), who had been convicted under the same indictment and had also received consecutive sentences of twenty years under the first count and twenty-five years under the second count, was entitled to have the sentence under the first count vacated. See and compare Durrett v. United States, 5 Cir., 107 F.2d 438; Wells v. United States, 5 Cir., 124 F.2d 334; Dimenza v. Johnston, 9 Cir., 130 F.2d 465, opinion filed September 10, 1942.

It appears that Holiday applied to the District Court for the Northern District of California for a writ of habeas corpus, alleging, among other things, that the sentence imposed on the second count of the indictment was void. See Holiday v. Johnston, 313 U.S. 342, 349, 550, 61 S.Ct. 1015, 85 L.Ed. 1392. The respondent in that case admitted that § 2 of the Act of May 18, 1934, 12 U.S.C.A. § 588b, "does not create two separate crimes but prescribes alternative sentences for the same crime depending upon the manner of its perpetration." 313 U.S. page 349, 61 S.Ct. page 1017, 85 L.Ed. 1392. The Supreme Court ruled that, even if Holiday was right in his contention that only the sentence imposed under the first count was valid, not having served that sentence, his remedy was not habeas corpus but was "to apply for vacation of the sentence and a resentence in conformity to the statute under which he was adjudged guilty." Holiday v. Johnston, supra, was decided May 26, 1941.

On November 26, 1941, Holiday filed in the court below a "motion to vacate judgment and for further proceedings for resentence." He asked that the District Court vacate the sentences imposed on October 13, 1936, on the grounds, (1) that they are excessive and conflicting, (2) that the indictment described but one offense and the court was without jurisdiction to impose a sentence under the second count, (3) that the second count is void because of vagueness and duplicity, and (4) that subsections (a) and (b) of § 588b, Title 12 U.S.C.A., are unconstitutional as applied to his case, since they provide for conflicting punishments for the same crime. He asked that the court order that he be brought before it so that he might be present during "the proceedings to be had for...