Stevens v. McClaughry

• Decision Date: 10 July 1913
• Docket Number: 3,879.
• Citation: 207 F. 18
• Parties: STEVENS v. McCLAUGHRY, Warden of United States Penitentiary.
• Court: U.S. Court of Appeals — Eighth Circuit

207 F. 18

STEVENS v. McCLAUGHRY, Warden of United States Penitentiary.

No. 3,879.

United States Court of Appeals, Eighth Circuit.

July 10, 1913

Turner W. Bell, of Leavenworth, Kan., for appellant.

Charles S. Briggs, Asst. U.S. Atty., of Topeka, Kan. (H. J. Bone U.S. Atty., and A. M. Harvey, Asst. U.S. Atty., both of Topeka, Kan., on the brief), for appellee.

Before SANBORN and CARLAND, Circuit Judges, and WILLARD, District judge.

SANBORN Circuit Judge.

This is an appeal from an order which denied the petition of Charles A. Stevens, alias Charles Savage, for a writ of habeas corpus and a release from the United States penitentiary at Leavenworth, Kan. He was indicted, convicted, and sentenced under the first two counts of an indictment, to imprisonment for five years under section 5469 of the Revised Statutes (U.S. Comp. St. 1901, p. 3692), for feloniously taking stealing, and carrying away on June 6, 1908, 'from and out of a certain United States mail car lying and being upon a side track at the union depot transfer station for United States mails at Kansas City, Jackson county, Mo., and then and there being the duly authorized depository for registered mail matter, a certain letter pouch containing registered mail, * * * from Los Angeles, Cal., to New York, N.Y., which said pouch contained large quantities of registered mail matter, from United States post office at Los Angeles, Cal and intended for delivery at United States post office at New York City, N.Y.,' and 108 letters and packages which had been lately deposited in the United States mails for mailing and delivery. At the same trial he was convicted and sentenced to an imprisonment for five years more, under section 5469 of the Revised Statutes, under four counts of the same indictment, for feloniously taking, stealing, and carrying away on June 6, 1908, 'from and out of a certain United States mail car lying and being upon a side track at the union depot transfer station for United States mails at Kansas City, Mo., and then and there being a duly authorized depository for registered letters, certain mail matter,' to wit, four registered letters numbered 96,419, 96,420, 96,421, and 96,422, and feloniously embezzling and converting to his own use the contents thereof. Each of these four letters was thus described in the indictment:

'A certain letter which had theretofore been deposited in the United States post office in Los Angeles, Cal., for mailing and delivery, to wit, registered letter No. 96,419 (or one of the other numbers), of the United States post office at Los Angeles, Cal., mailed and deposited in said post office by the Farmers' & Merchants' National Bank of Los Angeles, Cal., and intended to be conveyed by mail and addressed to and intended for the Importers' & Traders' National Bank of New York City, N.Y., which said letter then and there contained'

-- $12,500 lawful money of the United States.

The petitioner served his term of five years under the first two counts of the indictment, and then presented his petition for his release on the ground that all the offenses of which he was convicted constituted a single continuing criminal act, inspired by the same felonious intent, which was equally essential to each of the offenses charged in the indictment, and that the excess of his sentence beyond imprisonment for five years, which was the maximum punishment prescribed by section 5469 for a single offense, was beyond the jurisdiction of the court which sentenced him, and void, under the decision of this court in Munson v. McClaughry, 198 F. 72, 75, 76, 117 C.C.A. 180, 42 L.R.A. (N.S.) 302, the decision of the Circuit Court of Appeals of the Ninth Circuit in Halligan v. Wayne, 179 F. 112, 102 C.C.A. 410, and the opinions in Re Snow, 120 U.S. 274, 285, 7 Sup.Ct. 556, 30 L.Ed. 658; Hans Nielsen, Petitioner, 131 U.S. 176, 182, 190, 9 Sup.Ct. 672, 33 L.Ed. 118; Kite v. Commonwealth, 11 Metc. (Mass.) 581, 583; Triplett v. Commonwealth, 84 Ky. 193, 1 S.W. 84; Yarborough v. State, 86 Ga. 396, 12 S.E. 650; Commonwealth v. Birdsall, 69 Pa. 482, 485, 8 Am.Rep. 283.

The principle upon which the decisions in these cases rests is that two or more separate offenses which are committed at the same time and are parts of a single continuing criminal act, inspired by the same criminal intent which is essential to each offense, are susceptible to but one punishment. The most familiar illustration of the rule is that burglary with intent to commit larceny and larceny committed at the same time and as one continued act do not subject the perpetrator to two punishments, one for the burglary and another for the larceny, because the same criminal intent is indispensable to each, and they are each parts of a continuing criminal act. In order to take this case out from under this principle, counsel for the government argue that section 5469 denounces several separate offenses, two of which are: (1) Stealing the mail, or any letter or packet from any authorized depository for mail matter; and (2) taking the mail, or any letter or packet, which contains an article of value, from any authorized depository for mail matter, opening and embezzling the contents thereof; that the intent to embezzle is not essential to the former, but is indispensable to the latter offense; that the two offenses are therefore separate. Let all this be conceded. Nevertheless, in the case at bar, the pleader alleged the stealing of the letters in the third, fourth, fifth, and sixth counts of the indictment in the same words in which he alleged the stealing of the letter pouch and the letters in the first and second counts. He averred that the defendant 'did unlawfully, and feloniously take, steal, and carry away from and out of a certain United States mail car' the letters whose contents he also alleged that the defendant embezzled. Conceding, but not admitting, that the United States might have charged and upon conviction have punished the separate offense of taking the four registered letters and embezzling their contents, its averment in the four counts which treat of these letters, of the intent to steal them and of their stealing made that intent an issue under each count and an essential element of each offense charged, and thus brought this case directly under the rule and the authorities cited. In burglary with intent to commit larceny and larceny committed at the same time the intent to break and enter is not essential to the offense of larceny, but the intent to steal is indispensable to each offense. So in the case at hand, the intent to embezzle is not essential to the offense of stealing a mail pouch and the letters, but under this indictment the intent to steal and the stealing is made by the pleadings as indispensable an element of the four offenses charged in the third, fourth, fifth, and sixth counts of the indictment as it is of the offenses charged in the first two counts.

Counsel call attention to the conceded rule that charges of separate offenses of the same class may be joined in separate counts in the same indictment. But this rule and the practice under it does not detract from the soundness or effect of the principle that two or more separate offenses which are committed at the same time and are parts of a continuing criminal act inspired by the same indispensable felonious intent are susceptible of but one punishment. The two offenses in Munson v. McClaughry, 198 F. 72, 117 C.C.A. 180, 42 L.R.A. (N.S.) 302, were charged in separate counts of the same indictment, and the situation was the same in Halligan v. Wayne, 179 F. 112, 102 C.C.A. 410.

Finally it is said that the record fails to prove that the stealing and carrying away charged in the third, fourth, fifth, and sixth counts of the four registered letters, and the conversion of their contents, was a part of the same continuing act as the stealing and carrying away of the mail pouch and the 108 letters charged in the first and second counts. Let us see. The record is that the defendant was tried and convicted under each of these counts; hence that the charges they contain are true. The first count charges that on June 6, 1908, the defendant, at Kansas City, Mo., took, stole, and carried away--

'from and out of a certain United States mail car lying and being upon a side track at the union depot transfer station for the United States mails at Kansas City, Jackson county, Mo., and then and there being the duly authorized depository for registered mail matter, certain United States mail, to wit, a certain letter pouch containing registered mail, the lock on said pouch being number 2,424, rotary number 311, from Los Angeles, Cal., to New York, N.Y., which said pouch then and there contained large quantities of registered mail matter from United States post office at Los Angeles, Cal., and intended for delivery at United States post office at New York City, N.Y.'

Each of the third, fourth, fifth, and sixth counts charged that the defendant on June 6, 1908, at the same time that he took the mail pouch, at Kansas City, Mo., at the same place that he took the mail pouch, feloniously took, stole, and carried away a registered letter 'from and out of a certain United States mail car lying and being upon a side track at the union depot transfer station for United States mails at Kansas City, Mo.,' a mail car at the same place and described in the same words as the car from which he took the registered mail pouch, 'a certain letter which had lately theretofore been deposited in the United States post office at Los Angeles, Cal., mailed and deposited in said post office by the Farmers' & Merchants' National Bank of Los Angeles, Cal., and intended to be conveyed by mail and addressed to and intended for the Importers'...