United States v. Beverley, 24022.

• Decision Date: 15 September 1969
• Docket Number: No. 24022.,24022.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward Wayne BEVERLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

416 F.2d 263 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Edward Wayne BEVERLEY, Defendant-Appellant.

No. 24022.

United States Court of Appeals Ninth Circuit.

September 15, 1969.

Robert H. Moore (argued), Reno, Nev., for appellant.

Robert S. Linnell, Las Vegas, Nev. (argued), Julien G. Sourwine, Asst. U. S. Atty., Reno, Nev., for appellee.

Before HAMLEY and MERRILL, Circuit Judges, and POWELL, District Judge.^*

MERRILL, Circuit Judge:

Appellant, following jury trial, was convicted of aggravated mail robbery committed at the Steamboat, Nevada, Post Office, in violation of 18 U.S.C. § 2114.¹ He was given the mandatory 25 year sentence and has taken this appeal.

The indictment charged that appellant "put in jeopardy the lives of the mail custodians by the use of a dangerous weapon, to-wit, a loaded .357 Magnum Derringer-style pistol * * *."

Appellant admitted the robbery but denied that lives were put in jeopardy. He assigns as error the court's instructions respecting the nature of the offense,² and also the action of the court in sustaining an objection to a question put to appellant by his counsel respecting his intentions.³

In regard to both assignments of error appellant's theory is that lives were not put in jeopardy by the use of the gun unless appellant intended to use the weapon, not simply for the purpose of creating fear, but for the purpose of actually inflicting death or great bodily harm if necessary to accomplish the robbery.

We do not agree. It is clear as the court instructed that more is needed than creation of fear.

"We agree that the aggravated form of robbery described in the latter part of Sec. 2114 as putting `life in jeopardy by the use of a dangerous weapon\' means more than a `mere holdup by force and fear\'. It must be a holdup involving the use of a dangerous weapon actually so used during the robbery that the life of the person being robbed is placed in an objective state of danger."

Wagner v. United States, 264 F.2d 524, 530 (9th Cir., 1959).

The test, however, is an objective one, United States v. Donovan, 242 F.2d 61 (2d Cir., 1957). Lives can be placed in jeopardy by use of a dangerous weapon irrespective of the intent of the user. Here both mail custodians testified that the gun was pointed at them. There was evidence that the gun was loaded.⁴ At that point lives were in fact in jeopardy.⁵

Appellant further assigns as error the court's definition of a dangerous weapon (see footnote 2, supra) as "an operable firearm" or a "gun capable of firing a bullet." He contends that the jury might have found that although the gun was not loaded, it still met the definition since it was "capable of firing a bullet" and of being "wielded" to inflict harm.

No objection was interposed to the instruction. While the language may be said to be ambiguous in the abstract we do not regard it as plain error or as misleading under the circumstances. There is no suggestion that the gun was brandished as a club. The indictment specified a loaded gun. The court's emphasis upon the requirement that the victims actually be in danger clarifies the need for a loaded gun as distinguished from an unloaded one that, once loaded, might become dangerous.

Appellant contends that the mandatory 25 year sentence constituted cruel and unusual punishment.

While the wisdom of such a mandatory sentence is subject to severe question in the light of present generally accepted theories of correction, we cannot say that such a sentence for such a crime today amounts to cruel and unusual punishment. We note that it was recently accepted without question in Gregg v. United States, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969).

Appellant also attacks the mandatory sentence as denying him equal protection of the laws since other crimes, which appellant regards as equally serious, do not carry such extreme penalties and permit...