United States v. Bruce

• Decision Date: 07 October 1943
• Docket Number: No. 2086,2120.,2086
• Parties: UNITED STATES v. BRUCE.
• Court: U.S. District Court — Western District of Kentucky

52 F. Supp. 150

UNITED STATES v. BRUCE.

Nos. 2086, 2120.

District Court, W. D. Kentucky.

October 7, 1943.

Eli H. Brown, III, U. S. Atty., and J. D. Inman, Asst. U. S. Atty., both of Louisville, Ky., for plaintiff.

No attorney of record for the defendant.

SWINFORD, District Judge.

This case is before me on motion of the defendant, Floyd Bruce, to vacate and correct sentences and judgments which this Court gave and entered against him on the 19th day of May 1939.

The defendant was before the Court on two indictments, Indictments No. 2086 and No. 2120. The first of these indictments contained two counts. The first count charged a violation of the Act of May 18, 1934, c. 302, 48 Stat. 782, 18 U.S.C.A. § 408e, making it unlawful for a person to move in interstate or foreign commerce to avoid prosecution for a felony or to avoid giving testimony in any criminal proceeding in a place where the commission of a felony is charged. The second count of this indictment charges a violation of the Act of May 22, 1934, c. 333, Sec. 3, 48 Stat. 794, as amended by the Act of August 3, 1939, c. 413, Sec. 1, 53 Stat. 1178, 18 U.S.C.A. § 415, which makes it unlawful for a person to transport in interstate commerce stolen goods, securities or moneys of the value of $5,000 or more.

Indictment No. 2120 contains four counts. The first count charges a violation of Section 37 of the Criminal Code, 18 U.S.C.A. § 88, making it unlawful for two or more persons to conspire to commit an offense against the United States. It is alleged in the first count of this indictment that the defendant, with others, conspired to violate Sections 312 and 320 of Title 18 U.S.C.A., which makes it an offense to unlawfully steal, take and abstract mail matter from a United States mail pouch and to assault Arthur Mimms, a person having lawful charge, control and custody of the mail matter, and by placing in jeopardy, by the use of dangerous weapons, the life of such custodian and to wound him.

The second count of this indictment charges that the defendant committed the substantive offense, referred to in the first count, charged in Section 197 of the Criminal Code, 18 U.S.C.A. § 320. It is alleged in this count that the defendant, Floyd Bruce, and others, did assault, and aid and abet each other in assaulting, Arthur Mimms, a person having lawful charge and custody of United States mail matter with intent to rob, steal and purloin the mail matter.

The third count of the indictment charges the violation of Section 197 of the Criminal Code, 18 U.S.C.A. § 320. It is alleged that the defendant, with intent to rob, steal and purloin mail matter, did wound and kill, with dangerous weapons, Arthur Mimms, a person having lawful custody of the United States mail.

The fourth count of the indictment charges a violation of Section 194 of the Criminal Code, as amended, 18 U.S.C.A. § 317, which is the substantive offense set forth in the first count of the indictment. It is alleged that the defendant, with others, took, stole and abstracted from Arthur Mimms, a person employed by the post office establishment of the United States, mail matter containing Registered Article No. 195, which was lawfully in his custody.

To both of these indictments and to each count contained in them, the defendant entered a plea of "not guilty". A trial resulted in a verdict of "guilty" on each count in each indictment.

The defendant was sentenced on Indictment No. 2086 to five years on the first count and ten years on the second count, the sentences to run consecutively, or the sentence on count two not to be served until after sentence on count one was completed.

On Indictment No. 2120 the defendant was sentenced to two years on the first count, ten years on the second count, twenty-five years on the third count and five years on the fourth count, the sentences to be served consecutively, that is that the sentence on count one should be served first and the sentence on count two should not be served until after the sentence on count one; the sentence on count three not to be served until after sentence on count one and two; the sentence on count four not to be served until after sentence on counts one, two and three had been completed and that none of the sentences were to commence until the sentences on counts one and two in Indictment No. 2086 had been completed.

This made a total of fifty-seven years to be served.

The defendant contends that the Court erred in two respects in entering judgments on these sentences as above outlined: First, that the offenses charged in the second and third counts in Indictment No. 2120 were for the identical offense and that the defendant was twice placed in jeopardy in violation of his constitutional rights as guaranteed by the Fifth Amendment. Second, that the Court lacked jurisdiction to impose the sentences and issue the commitments on the same day because the defendant had stood trial before a jury without the assistance of counsel and had five days in which to come into Court and give notice of appeal; that the sentences were imposed on the 19th day of May 1939 and that on the 24th day of May 1939, when the defendant should have been produced in Court to give notice of appeal or move for a new trial and take other proceedings, he was already committed to the Federal Penitentiary at Leavenworth, Kansas.

Since this defendant was without counsel either at the time of his arraignment or now of record in this presentation, I think it wise, even at the expense of being tedious, to review this entire proceeding and to consider every phase of this judgment and commitment.

In support of the charges contained in the indictment the United States offered proof to show that this defendant, with two companions, by the use of revolvers and a sub-machine gun, held up Arthur Mimms, a post office messenger, and took a mail pouch containing, among other things, $25,000. At the time of the commission of the offense they shot and severely wounded the Chief of Police of Gutherie, Kentucky.

The first question presented by the motion is the question of jurisdiction. The United States has briefed no other point in this case and apparently is content to rest its case solely upon the proposition that since the term at which the judgment was entered has expired, the Court cannot entertain the motion to correct the judgment.

This position might be termed the orthodox view or rule of jurisdiction. As a general rule it has been accepted without question and applied consistently by trial courts. In the case of Bronson v. Schulten, 104 U.S. 410, 415, 26 L.Ed. 797, the Court states the general rule in comprehensive language as follows:

"In this country all courts have terms and vacations. The time of the commencement of every term, if there be half a dozen a year, is fixed by statute, and the end of it by the final adjournment of the court for that term. This is the case with regard to all the courts of the United States, and if there be exceptions in the State courts, they are unimportant. It is a general rule of the law that all the judgments, decrees, or other orders of the courts, however conclusive in their character, are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and they may then be set aside, vacated, modified, or annulled by that court.

"But it is a rule equally well established, that after the term has ended all final judgments and decrees of the court pass beyond its control, unless steps be taken during that term, by motion or otherwise, to set aside, modify, or correct them; and if errors exist, they can only be corrected by such proceeding by a writ of error or appeal as may be allowed in a court which, by law, can review the decision. So strongly has this principle been upheld by this court, that while realizing that there is no court which can review its decisions, it has invariably refused all applications for rehearing made after the adjournment of the court for the term at which the judgment was rendered. And this is placed upon the ground that the case has passed beyond the control of the court. Brooks v. Burlington Railroad Company, 102 U.S. 107, 26 L.Ed. 91; Public Schools v. Walker, 9 Wall. 603, 19 L.Ed. 650; Brown v. Aspden's Adm'rs, 14 How. 25, 14 L.Ed. 311; Cameron v. McRoberts, 3 Wheat. 591, 4 L.Ed. 467; Sibbald v. United States, 12 Pet. 488, 9 L. Ed. 1167; United States v. The Brig Glamorgan, Fed.Cas.No. 15,214 2 Curt. C.C. 236; Bradford v. Patterson, 1 A. K. Marsh., Ky., 464; Ballard v. Davis, 3 J. J. Marsh., Ky., 656."

In the later case of United States v. Mayer, 235 U.S. 55, page 67, 35 S.Ct. 16, 19, 59 L.Ed. 129, the Court, speaking through Mr. Justice Hughes, states the rule and gives authorities: "1. In the absence of statute providing otherwise, the general principle obtains that a court cannot set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during that term. Hudson v. Guester, 7 Cranch 1, 3 L.Ed. 249; Cameron v. McRoberts, 3 Wheat. 591, 4 L.Ed. 467; Ex parte Sibbald, 12 Pet. 488, 492, 9 L.Ed. 1167, 1169; Bank of United States v. Moss, 6 How. 31, 38, 12 L.Ed. 331, 334; Bronson v. Schulten, 104 U.S. 410, 415-417, 26 L.Ed. 797, 799, 800; Phillips v. Negley, 117 U.S. 665, 673, 674, 6 S.Ct. 901, 29 L.Ed. 1013-1015; Hickman v. Fort Scott, 141 U.S. 415, 12 S.Ct. 9, 35 L.Ed. 775; Hume v. Bowie, 148 U.S. 245, 255, 13 S.Ct. 582, 37 L.Ed. 438, 440; Tubman v. B. & O. R. R. Co., 190 U.S. 38, 23 S.Ct. 777, 47 L.Ed. 946; Wetmore v. Karrick, 205 U.S. 141, 149-152, 27 S.Ct. 434, 51 L.Ed. 745, 748-750; In re Metropolitan Trust Co., 218 U.S. 312, 320, 321, 31 S.Ct. 18, 54 L.Ed. 1051, 1054, 1055." And at a later place in the opinion the Court uses this language (235 U.S. 68, 35 S.Ct. 19, 59 L.Ed. 129): "In view of the statutory and limited jurisdiction of the Federal...