Sorenson v. United States

Decision Date13 February 1909
Docket Number2,574.
Citation168 F. 785
PartiesSORENSON v. UNITED STATES.
CourtU.S. Court of Appeals — Eighth Circuit

[Copyrighted Material Omitted]

E. D Perry (W. A. Spurrier and E. C. Mills, on the brief), for plaintiff in error.

Marcellus L. Temple, U.S. Atty., and George B. Stewart, Asst. U.S Atty.

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

PHILIPS District Judge.

The plaintiff in error (hereinafter designated the defendant) was indicted in connection with one Frank Hodge, in two counts, predicated of section 5478, Rev. St. U.S. (U.S. Comp. St. 1901, p. 3696), for forcibly breaking into a building used in part as a post office of the United States, in the town of Van Meter, Dallas county, Iowa. There was another count in the indictment, predicated of section 5475 of the statute (U.S. Comp. St. 1901, p. 3694), for stealing property in said post office belonging to the Post Office Department, to wit, postal funds of the value of $66.62 and money order funds of the value of $76.86. On trial to a jury a verdict of guilty was returned 'as charged in the indictment.' Thereupon the court sentenced this defendant on the first count to imprisonment in the Iowa State Penitentiary, at Ft. Madison, for a period of four years; and on the second, for the larceny, the sentence was imprisonment for a period of two years and six months, the time of the sentence under the last-named count to commence at the termination of the sentence under the former; with the further order that the defendant be fined in the sum of $5 and pay one-half of the costs of the prosecution. There was no sentence on the other count, for breaking into the post office, presumably for the reason that the two counts predicated of the burglary were for one and the same offense. The defendant Hodge was sentenced to imprisonment in said penitentiary for four years under the count for burglary, and one year and six months in said penitentiary on the count for larceny, with the imposition of a fine of $5 and the payment of one-half the costs.

The penalty prescribed for a violation of said section 5478 is a fine of not more than $1,000 and imprisonment at hard labor for not more than five years. The penalty for the violation of section 5475, when the value of the property is $25 or more, is imprisonment at hard labor for not more than three years. It is observable that the imprisonment prescribed in both of said sections of the statute is at hard labor. There is no fine imposable under section 5475 where the value of the property exceeds $25. Under section 5478 both imprisonment and fine are mandatory. The judgment does not show that the $5 fine imposed was under the count for burglary. Both judgments are fatally defective for failing to impose the imprisonment at hard labor. The rule in the courts of the United States is that 'a judgment in a criminal case must conform strictly to the statute, and any variation from its provisions, either in the character or extent of the judgment invoked, renders the judgment absolutely void. ' Harman v. United States (C.C.) 50 F. 921; Ex parte Karstendick, 93 U.S. 396, 23 L.Ed. 889; In re Graham, 138 U.S. 461, 11 Sup.Ct. 363, 34 L.Ed. 1051; Ex parte Lange, 18 Wall. 163, 21 L.

Ed. 872; Ir re Mills, 135 U.S. 263, 10 Sup.Ct. 762, 34 L.Ed. 107. This defect would of itself compel a reversal of the judgment and remand for further proceedings in conformity to law. The course to be pursued on the remand of a case in such contingency is pointed out in United States v. Harman (D.C.) 68 F. 472, Woodruff v. United States (C.C.) 58 F. 766, and in Re Bonner, 151 U.S. 242, 14 Sup.Ct. 323, 38 L.Ed. 149.

The codefendant Hodge did not join in the writ of error, which is prosecuted alone by the defendant Sorenson.

The first count of the indictment is predicated of section 5478, Rev. St. U.S., which declares that:

'Any person who shall forcibly break into, or attempt to break into any post-office, or any building used in whole or in part as a post-office, with intent to commit therein larceny or other depredation, shall be punished,' etc.

It has been, without dissent, the view of the District Courts administering this statute, since the considerate and logical opinion of Judge Deady, in United States v. Campbell (C.C.) 16 F. 233, that it should be interpreted as if it read 'with intent to commit larceny in the part of said building used as a post-office. ' See United States v. Williams (D.C.) 57 F. 201; United States v. Yennie (D.C.) 74 F. 221; United States v. Saunders (D.C.) 77 F. 170; United States v. Shelton (C.C.) 100 F. 831. In the Shelton Case, Judge Simonton, in discussing the instance of a breaking into a building, a single room, used for the sale of merchandise and in part as a post office, where only goods of the merchantman were taken, said:

'If we construe this section to mean that any entry, with felonious intent, into any part of a building used in part as a post office, is punishable in the federal court, then it would give the court jurisdiction of a commonlaw offense. This jurisdiction federal courts cannot exercise. But if we construe the section to punish an entry into that part of the building used as a post office, with intent to commit larceny therein, the jurisdiction can be sustained. The section is ambiguous. Under these circumstances, it must be construed 'ut magis valeat quam pereat.' ' If,' says Mr. Justice Story in U.S. v. Coombs, 12 Pet. 76, 9 L.Ed. 1006, 'the section admits of two interpretations-- one which brings it within, and the other passes it beyond, the constitutional authority of Congress-- it will become our duty to adopt the former construction, because a presumption ought never to be indulged that Congress meant to exercise or usurp any unconstitutional authority, unless that conclusion is forced upon the court by language altogether unambiguous.' In U.S. v. Campbell (C.C.) 16 F. 233, Judge Deady sustained the demurrer to an indictment charging a defendant under this section, because the indictment did not state that the larceny was intended for that part of the building used as a post office. In U.S. v. Williams (D.C.) 57 F. 201, an indictment under this section was sustained. The word 'therein' in the indictment, used also in the section, was held to refer to the post office. It was thus distinguished from the case of U.S. v. Campbell. The indictment in this latter case used the words 'in said building,' and so would mean in any part of the building, whether used as a post office or not. So it was held bad on demurrer. This construction of the section seems, also, to have met the approval of Judge Brown, of New York, in U.S. v. Yennie (D.C.) 74 F. 221. It is distinctly decided in U.S. v. Saunders (D.C.) 77 F. 170. The evidence being uncontradicted that the breaking into, the entry, and the larceny were neither of them in that part of the building used as a post office, the defendant cannot be convicted under this section.' The United States district attorney in drawing the indictment here in question recognized such construction of the statute. The charge is that the defendants did--
'unlawfully, willfully, and forcibly break into a certain building then and there used in part as a post office of the United States, to wit, a building in Van Meter, in the county of Dallas, in the state of Iowa, so used as aforesaid, with the intent of them, said Andrew H. Sorenson and Frank Hodge, then and there to commit larceny therein in that part of the said building then and there so used as a post office of the United States.'

The intent in breaking into the building is the essence of the offense denounced by this section, and it must be proved as alleged. We are not here concerned with the question as to the competency of Congress, within constitutional limitations, to declare it a felony for a person to break into a building used in whole or in part as a post office. It is sufficient for the purpose of this case to say that Congress has not assumed the exercise of such power. It limited the offense of breaking into a building to the intent to commit in and on the Post Office Department a larceny or other depredation. This intent is a jurisdictional fact, because it is constitutive of the offense, and conditions the exercise of jurisdiction over it by a federal court. The statute in question was enacted by Congress in recognition of the fact that in a vast number of instances, especially in small towns and rural districts, post offices are kept in the same building and on the same floor where mercantile or other business is conducted by the occupants of part of the room. But it is the recognized practice in such instances that the post office apartment shall be fenced off or separated from the other part of the building or room. So under Postal Laws and Regulations, Sec. 318, subsec. 3, it is observable that, in the matter of rent of a part of a building by a postmaster for post office purposes, a report is required to be made to the Postmaster General, giving a description of the room or store and the class of business carried on by the occupant, and what separation there will be between the post office and the other parts of the room. This is required before the postmaster is permitted to so locate his post office. And he is presumed to keep within his own apartment the property pertaining to the post office. For his own protection he may deposit the funds of the post office in some depository for safe-keeping. But if such deposit should be made elsewhere, the breaking into such place would not be indictable under section 5478.

Under the evidence in this case the only possible inference as to the manner of the entry into the building is that it must have been through...

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