Rutkowski v. United States
| Decision Date | 23 May 1945 |
| Docket Number | No. 9951.,9951. |
| Citation | 149 F.2d 481 |
| Parties | RUTKOWSKI v. UNITED STATES. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Frank Rutkowski, of Alcatraz, Cal., in pro. per.
Vincent Fordell, of Detroit, Mich. (John C. Lehr and Vincent Fordell, both of Detroit, Mich., on the brief), for the United States.
Before SIMONS, ALLEN, and HAMILTON, Circuit Judges.
The appellant filed a motion to vacate a sentence imposed on the second count of an indictment charging him with violation of Title 18 U.S.C. § 99, 18 U.S.C.A. § 99. The District Court overruled the motion, and from this order this appeal is prosecuted.
The statute alleged to be violated reads as follows:
"Whoever shall rob another of any kind or description of personal property belonging to the United States, or shall feloniously take and carry away the same, shall be fined not more than $5,000, or imprisoned not more than ten years, or both."
An indictment in two counts was returned against the appellant, who after pleading guilty was sentenced to ten years imprisonment and a fine of $1,000 on Count I, and to ten years on Count II, the sentences to be served consecutively.
The pertinent part of Count I of the indictment charged the appellant with unlawfully and knowingly robbing a postal clerk in the city of Detroit, Michigan, "of certain personal property belonging to the United States, to-wit: $207.27 of money order funds and $80.54 of Postal Funds," which were then and there in the custody of such postal clerk, with the intent to convert the personal property described to his own use.
Count II of the indictment charged that the appellant, on the date of the robbery charged, unlawfully and knowingly took and carried away from the postal station in question certain personal property belonging to the United States, with the intent to convert it to his own use. The property described was identical with that described in Count I.
The appellant contends that the indictment charges only one offense and that the sentence under the two counts places him twice in jeopardy for the same offense, in violation of the Fifth Amendment to the Constitution of the United States.
The appellee contends, and the District Court held, that while the robbing of the postal clerk and the taking of the personal property belonging to the United States involved only one transaction, the statute established two distinct offenses, one the offense of robbery, and the other the offense of feloniously taking and carrying away personal property belonging to the United States. These offenses were held in Jolly v. United States, 170 U.S. 402, 18 S.Ct. 624, 42 L.Ed. 1085, to be distinct and separate, and therefore the appellee urges that the denial of the motion must be sustained.
We bear in mind the established rule that the test to be applied in determining whether offenses charged in two or more counts of an indictment constitute separate and distinct crimes is whether each count requires proof of an additional fact which is not required by the other. Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057, 6 Ann.Cas. 362. In that case an agreement by a certain federal officer to receive compensation for services before a department of the Government in relation to matters in which the United States was interested was made by statute an offense. The receiving of compensation in violation of the statute was made another and separate offense. The Supreme Court pointed out that the statute might be violated by an agreement to receive compensation for services to be rendered without any compensation being in fact paid, and that it also might be violated by the receiving of compensation for the forbidden services without any previous agreement. In one case the principal fact necessary to establish the crime is the agreement; in the other case it is the receipt of the compensation.
Under the statute involved here, to sustain the robbery charge, evidence of forcible taking or a taking by putting the individual robbed in fear, is essential, while to sustain the charge of felonious taking only the elements of ordinary larceny need be proved. Other and additional proof than that needed for larceny is required to establish the crime of robbery, and in this sense the two offenses are distinct and separate. If the crime of robbery has been made out, however, no additional proof is required to establish the crime of larceny. There...
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