Thornburg v. United States, 3507.

• Decision Date: 28 October 1947
• Docket Number: No. 3507.,3507.
• Citation: 164 F.2d 37
• Parties: THORNBURG v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

164 F.2d 37 (1947)

THORNBURG v. UNITED STATES.

No. 3507.

Circuit Court of Appeals, Tenth Circuit.

October 28, 1947.

Albert Ellis Radinsky, of Denver, Colo., for appellant.

Lester Luther, Asst. U. S. Atty., of Topeka, Kan., for appellee.

Before BRATTON, HUXMAN and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

The indictment in this case, returned in the United States Court for Kansas, charged that by force and violence and putting in fear, and by assaulting and putting in jeopardy the lives of Joseph F. Blach, B. S. Cofer, James A. Allen, and Ward Lee Scott, and by the use of dangerous weapons and devices, John William Thornburg robbed The First National Bank of Chanute, Kansas; that he carried away $4,860 in money which belonged to the bank; that Allen was president and Cofer vice-president of the bank; and that at the time of and concurrently with the robbery and the taking away of the money, and for the purpose of avoiding and attempting to avoid apprehension for the commission of the offense charged as aforesaid, Thornburg then and there unlawfully and feloniously forced Blach and Scott to accompany and go with him, without their consent. A plea of guilty was entered and sentence of imprisonment for a term of thirty-five years was imposed. After being confined in the penitentiary for approximately eight years, appellant filed a motion in the case for the correction of the sentence. The court denied the motion, and this appeal is from that action.

The motion challenged the sentence on the ground that the maximum punishment authorized by law for the offense laid in the indictment was twenty-five years, and that therefore the sentence of thirty-five years was invalid. The court which imposed sentence in a criminal case has jurisdiction after the expiration of the term at which the sentence was imposed to entertain a motion to vacate the sentence on the ground that it exceeded the maximum punishment authorized by law for the offense charged, and an appeal will lie from the denial of a motion of that kind. Peeler v. United States, 10 Cir., 163 F.2d 823.

It is the contention of appellant that the indictment charged an offense under 12 U.S.C.A. § 588b (a-c); that the maximum punishment authorized by the statute is twenty-five years imprisonment, or a fine, or both; that the sentence imposed exceeded that authorized by law; and that therefore the sentence was void. The indictment charged an offense under 12 U.S.C.A. § 588c for which the maximum punishment authorized by law is imprisonment for not less than ten years, or by death if the verdict of the jury shall so direct. Casebeer v. United States, 10 Cir., 87 F.2d 668. The punishment imposed was within the maximum authorized by that section, and therefore the judgment is not open to the objection urged against it. Casebeer v. United States, supra.

The indictment bore the endorsement "Violation: 12 U.S.C.A. § 588b(a) (b) (c). Penalty: Imprisonment not less than 10 years, or death if the verdict of the jury shall do direct." Emphasis is placed upon the endorsement as indicating an intention to charge an offense under section 588b of the statute, not section 588c. But an endorsement on the outside of an indictment in which reference is made to a statute or to statutes does not constitute any part of the indictment and does not add to or weaken the legal effect of the charging allegations contained in the indictment. The question whether an indictment charges an offense under the law must be determined by the allegations contained in the indictment, without reference to an endorsement on the outside of it respecting a statute or statutes. Williams v. United States, 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509; Capone v. United States, 51 F.2d 609, 76 A.L.R. 1534, certiorari denied, 284 U. S. 669, 52 S.Ct. 44, 76 L.Ed. 566; Buckner v. Hudspeth, 10 Cir., 105 F.2d 393; Moore v. Hudspeth, 10 Cir., 110 F.2d 386, certiorari denied, 310 U.S. 643, 60 S.Ct. 1106, 84 L.Ed. 1411; Pickens v. United States, 5 Cir., 123 F.2d 333, certiorari denied, 316 U.S. 669, 62 S.Ct. 1039, 86 L.Ed. 1744.

The further contention is that the indictment was insufficient in substance to charge an offense under section 588c of the statute. Stripped of surplusage, the argument is that the offense charged was not laid in the words of the statute. Section 588c provides in substance...