Munson v. McClaughry

• Decision Date: 15 July 1912
• Docket Number: 3,776.
• Citation: 198 F. 72
• Parties: MUNSON v. McCLAUGHRY, Warden.
• Court: U.S. Court of Appeals — Eighth Circuit

198 F. 72

MUNSON v. McCLAUGHRY, Warden.

No. 3,776.

United States Court of Appeals, Eighth Circuit.

July 15, 1912

Syllabus by the Court

The sentence of a defendant, convicted on two separate counts of an indictment, under sections 5478 and 5456, or 5475, Revised Statutes (U.S. Comp. St. 1901, pp. 3683, 3694, 3696), of burglary of a post office building with intent to commit larceny and of larceny committed at the same time and as a part of a continuous criminal act, to separate punishments for the burglary and the larceny, is ultra vires and void as to the sentence for the larceny, and after the defendant has satisfied the sentence for the burglary he is entitled to his release on habeas corpus.

The excess of a judgment beyond the jurisdiction of the court which renders it is as void as a judgment without any jurisdiction, and a prisoner held under such excess is entitled to his release by writ of habeas corpus.

Turner William Bell, for appellant.

H. J Bone, U.S. Atty., and McCabe Moore, Asst. U.S. Atty., for appellee.

Before SANBORN and HOOK, Circuit Judges, and WILLARD, District Judge.

SANBORN Circuit Judge.

This is an appeal from an order which denied the petition of Charles Munson for a writ of habeas corpus and a release from the United States Penitentiary at Leavenworth, Kan. The petitioner was indicted, convicted, and sentenced under one count of an indictment to a fine and imprisonment for five years under section 5478 of the Revised Statutes (U.S Comp. St. 1901, p. 3696), for forcibly breaking into a building used in part as a post office, with intent to commit larceny in the part of the building so used, and under another count of the same indictment to imprisonment for one year under section 5456 or 5475, Revised Statutes (U.S. Comp St. 1901, pp. 3683, 3694), to begin after the expiration of the sentence for five years, for stealing postage stamps and other property belonging to the Post Office Department of the United States from the same building at the same time that he committed the offense of breaking with intent to commit larceny charged in the first count of the indictment. He paid his fine and served his term of five years under the first count, and then presented this petition for a writ of habeas corpus and for his release from the penitentiary, on the ground that where one is convicted of burglary with intent to commit larceny and of larceny committed at the same time and place, the court is without jurisdiction, after sentencing for the former crime, to impose a farther and separate sentence for the latter.

There is no doubt that the defendant might have been convicted and sentenced for the offense charged in the first count of this indictment without a conviction or sentence for the offense charged in the second count, or for the offense charged in the second count without a conviction or sentence for the offense charged in the first count; and section 1024 of the Revised Statutes (U.S. Comp. St. 1901, p. 720), provides that where there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, which may be properly joined, the whole may be joined in one indictment in separate counts. Counsel for the United States argue that the act of breaking, or attempting to break into, a building used as a post office with intent to commit larceny therein, and the act of stealing stamps or property of the United States, are separate offenses, as they undoubtedly are when they are not parts of the same act or transaction, and from this premise they deduce the conclusion that, although they are parts of the same act or transaction, they still remain separate offenses, for which the perpetrator may be separately indicted, convicted, and punished. In support of this position they call attention to these authorities: Ex parte Peters (C.C.) 12 F. 461; United States v. Williams (D.C.) 57 F. 201; United States v. Yennie (D.C.) 74 F. 221; Sorenson v. United States, 168 F. 785, 94 C.C.A. 181; Rapalje on Larceny, Sec. 351, p. 412; State v. Barker, 64 Mo. 282; State v. Ridley, 48 Iowa, 370; Breese v. State, 12 Ohio St. 146, 80 Am.Dec. 340; Speers v. Commonwealth, 58 Va. 570; Dodd v. Arkansas, 33 Ark. 517; State v. Warner, 14 Ind. 572; People v. Devlin, 143 Cal. 128, 76 P. 900; State v. Ingalls, 98 Iowa, 728, 68 N.W. 445; Gordon v. State, 71 Ala. 315; Territory v. Willard, 8 Mont. 328, 21 P. 301; State v. Martin, 76 Mo. 337; Howard v. State, 8 Tex.App. 447; Smith v. State, 22 Tex.App. 350, 3 S.W. 238; Rust v. State, 31 Tex.Cr.R. 75, 19 S.W. 763.

A criminal intent to commit larceny of property of the government is an indispensable element of each of the offenses of which the petitioner was convicted, and there can be no doubt that where one attempts to break into or breaks into a post office building with intent to commit larceny therein, and at the same time commits the larceny, his criminal intent is one, and it inspires his entire transaction, which is itself in reality but a single continuing criminal act. It seems to be unauthorized, inhumane, and unreasonable to divide such a single intent and such a criminal act into two or more separate offenses, and to inflict separate punishments upon the various steps in the act or transaction, such as one for breaking, or for the attempt to break with the criminal intent, and another for a larceny with the same intent, or such as one for the attempt to break, a second for the breaking, a third for the entering, a fourth for the taking of stamps, a fifth for the taking of other property, a sixth for the conversion of the property, and a seventh for carrying it away, all with the same single criminal intent. And there is evidently no limit to the number of offenses into which a single criminal transaction inspired by a single criminal intent may be divided, if this rule of division and punishment is once firmly established. The theory that such an act and intent could be punished as two separate offenses seems to have taken its rise in the federal courts in the decision of Circuit Judge McCrary in Ex parte Peters (C.C.) 12 F. 461. At that time the Supreme Court of Connecticut had held in Wilson v. State, 24 Conn. 57, that a conviction of larceny at the same time that a burglary was committed constituted no defense to a charge of the burglary. Chief Justice Waite, however, in an able opinion which has commended itself to the judgment of many courts, dissented from this conclusion and declared that:

'Whenever, in any criminal transaction, a felonious intent is essential to render it a crime, and without proof of which no conviction can be had, two informations, founded upon the same intent, cannot be maintained.'

Judge McCrary, in his opinion in the Peters Case, said that the reasoning of Chief Justice Waite was so strong that if it were a question of first impression he would be inclined to adopt his opinion, but that he found the law very well settled to the contrary, and he cited Bishop's Criminal Law, Sec. 1062, Josslyn v. Commonwealth, 6 Metc. (Mass.) 236, State v. Ridley, 48 Iowa, 370, and Breese v. State, 12 Ohio St. 146, 80 Am.Dec. 340. A careful examination of these authorities discloses the fact that they fail to support his statement that they settle the question in favor of his decision.

In Josslyn v. Commonwealth, the Supreme Judicial Court of Massachusetts held only:

'That where the breaking and entering and actual stealing are charged in one count, there is but one offense charged, and there can be but one penalty adjudged. But where they are averred in distinct counts, as distinct substantive offenses, not alleged to have been committed at the same time and as one continued act, if in other respects they are such offenses as may be joined in the same indictment, the defendant may be convicted on both and a judgment rendered founded on both.' Bishop, at sections 1062, 1063, and 1064 of his work on Criminal Law, cites authorities on each side of this question and gives the opinion that:

'To make a burglary thus double and punish it twice, first as burglary and secondly as larceny, hardly accords with the humane policy of our law.'

It will be noticed that the decision in Josslyn's Case was that the burglary and larceny might be pleaded as separate offenses, where they were 'not alleged to have been committed at the same time and as one continued act,' which was in effect to hold that, if they were pleaded or proved to have been 'committed at the same time and as one continued act,' they could not be punished as separable offenses. And that was, at the time Judge McCrary...