Rowan v. United States
Decision Date | 14 March 1922 |
Docket Number | 3757. |
Citation | 281 F. 137 |
Parties | ROWAN et al. v. UNITED STATES. [1] |
Court | U.S. Court of Appeals — Fifth Circuit |
Jed C Adams and W. B. Harrell, both of Dallas, Tex., for plaintiffs in error.
Henry Zweifel, U.S. Atty., and Ben P. Allred, Asst. U.S. Atty both of Fort Worth, Tex.
Before WALKER, BRYAN, and KING, Circuit Judges.
This case went to trial on the first count of the indictment which was demurred to by the plaintiffs in error, Albert Rowan and Ben Luna. The ground of demurrer relied on in argument is one suggesting that that count is duplicitous because it charges more than one separate and distinct offense. The count mentioned charged that the plaintiffs in error, W. S. Scrivnor and three other named persons, did on a stated date commit an assault upon named custodians while they were in charge of United States registered mail at the Jackson Street substation of the United States post office at Dallas, Tex., and did with dangerous and deadly weapons, to wit, loaded pistols, assault the said custodians and put them in great fear of serious bodily injury and death, by pointing said pistols at such custodians and shooting the said custodians, with intent to rob, steal, and purloin the said registered mail in the possession of said custodians, and did then and there rob, take, steal, and carry away from the presence of said custodians and against their will a large amount of said registered mail, and in effecting said robbery did then and there wound two named custodians of said mail, by shooting them with pistols, and in effecting said robbery did put the life of each and all of said custodians in jeopardy by the use of dangerous weapons, to wit, loaded pistols. The following is section 197 of the Criminal Code (Comp. St. Sec. 10367:
'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 the 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.'
The objection on the ground of duplicity is based upon the charge made in the count embracing both the offense which, under the quoted statute, is punishable by imprisonment for not more than 10 years, and also the offense which, under the same statute, is punishable by imprisonment for 25 years. The above-mentioned averments are descriptive of a single alleged occurrence. The count being one making the charge that the defendants therein committed the offense punishable by imprisonment for 25 years, the alleged occurrence could not properly have been so described that the defendants could not, under the count, be found guilty of the offense punishable by imprisonment for not more than 10 years.
'In all criminal causes the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment. ' R.S. Sec. 1035 (Comp. St. Sec. 1701).
One count may charge the doing of the thing denounced by the statute in each of the prohibited modes. A count in an indictment is not double, because it charges several related acts, all of which enter into and constitute a single offense, though such acts may in themselves constitute distinct offenses. Crain v. United States, 162 U.S. 625, 636, 16 Sup.Ct. 952, 40 L.Ed. 1097; Commonwealth v. Holmes, 165 Mass. 457, 43 N.E. 189; Farrell v. State, 54 N.J.Law, 416, 24 A. 723.
W. S. Scrivnor, one of the indicted persons, entered a plea of guilty, and testified as a witness for the prosecution. His testimony, voluntarily given, was admissible against his codefendants. The provision of the statute (U.S. Compiled Statutes, Sec. 1465) to the effect that a defendant in a criminal case shall, at his own request but not otherwise, be a competent witness, does not make the competency of one defendant as a witness dependent upon the consent of a codefendant. The objection by Rowan and Luna to the admission against them of the testimony of their codefendant Scrivnor was properly overruled.
The testimony of Scrivnor included an account of what occurred during the afternoon preceding the evening of the robbery, in a room in a hotel in Dallas while the witness, Rowan, Luna, Pat Murphy, and several other persons were present. In the course of the discussion of the plan to rob the Jackson Street post office, Murphy asked Rowan if he could be positive that the money was there at that time, and before Rowan could answer Luna spoke up and said: 'No doubt about the money being...
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