United States v. Clifton, Crim. A. No. 1569.

• Decision Date: 14 August 1950
• Docket Number: Crim. A. No. 1569.
• Citation: 91 F. Supp. 940
• Parties: UNITED STATES v. CLIFTON.
• Court: U.S. District Court — Eastern District of Arkansas

91 F. Supp. 940

UNITED STATES v. CLIFTON.

Crim. A. No. 1569.

United States District Court E. D. Arkansas, N. D.

August 14, 1950.

James T. Gooch, United States Attorney, Gerland P. Patten and W. H. Gregory, Assistant United States Attorneys, all of Little Rock, Ark., for the United States.

M. Fuller Highsmith, Batesville, Ark., for defendant.

LEMLEY, District Judge.

This cause comes on for hearing upon the petition of the defendant to vacate and set aside a portion of the judgment and sentence of the Court, imposed upon him on May 27, 1947. The defendant was indicted in four counts; the first and third counts of the indictment charged him with having burglarized, respectively, the post offices at Beedeville and Oil Trough in north Arkansas, and the second and fourth counts charged him with having stolen postal funds from each of said offices. The first and third counts were laid under Section 315 of old Title 18 U.S.C.A.¹ and the second and fourth counts were laid under Section 313 of said Title.²

The defendant was represented by counsel at his arraignment; the several counts of the indictment were read to him, and the consequences of a plea of guilty or a conviction were explained. Defendant entered pleas of guilty to all four counts of the indictment, in which pleas his attorney concurred; cumulative sentences totalling ten years were imposed. In the present proceeding he attacks the sentences imposed on the first and third counts; the validity of the sentences imposed on the second and fourth counts is unchallenged. It is the defendant's position here that the first and third counts of the indictment are fatally defective in that they do not allege offenses against the United States.³

The first count of the indictment alleged that on or about November 19, 1946, the defendant "did at Beedeville, in the County of Jackson, State of Arkansas, knowingly, unlawfully, and forcibly break into a building at Beedeville, Arkansas, then and there used in part as a Post Office of the United States with the intent then and there to commit a larceny in that part of said building so used as a Post Office of the United States, thereby violating Section 315, Title 18 United States Code Annotated." The third count was identical with the first except it alleged the commission of the same offense at Oil Trough in Independence County on December 22, 1946.

Both Beedeville and Oil Trough are rural communities, and the post offices serving them are located in buildings occupied in part by mercantile establishments. The defendant admits that he broke into these buildings but claims that his entries were made into those portions of the buildings devoted to mercantile purposes rather than into those portions occupied by the respective post offices. It is his contention that, with respect to buildings used only in part as post offices, an essential element of the offense of "post office burglary" is that the initial "break-in" be into the post office proper, and that if entry to the building is gained at any part thereof other than that used as a post office, no crime is committed under Section 315 of old Title 18. He argues that since the first and third counts did not allege that he broke into the post office parts of the buildings at Beedeville and Oil Trough, these counts did not allege offenses against the United States.

Section 315 of old Title 18 is as follows: "Whoever 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 in such post office, or building, or part thereof so used, any larceny or other depredations, shall be fined not more than $1,000 and imprisoned for not more than five years."⁴

When we construe this statute in accordance with the language thereof and in the light of the purpose for which it was enacted,⁵ we are convinced that there is no merit in defendant's contention. We are of the opinion that to make out an offense under this statute, with respect to a building used in part as a post office, two things are necessary: First, a forcible entry or attempted entry into some part of the building. Second, an intent to commit larceny or other depredation in the part of the building used as a post office, which intent must exist at the time the forcible entry or attempt is made. But we do not deem it essential that the original illegal entry into the building be into the part thereof used as a post office. Given the intent to commit larceny or other depredation in the post office part of the building, it is immaterial at what part of the building entrance is effected. This statute was so construed in U. S. v. Saunders, D.C. Ind., 77 F. 170, where it was said, "* * * if there is a breaking into any part of a building used in part for a post office, with intent to commit larceny in the part so used, it constitutes an offense, within the true meaning of the statute; and, so construed, the statute is open to no constitutional objection. Congress has undoubted power in providing for the protection of the postal service, to make any breaking which may impair the security of that part of the building used for such purpose a criminal offense, when such breaking is done with intent to commit larceny therein." 77 F. loc. cit. 171.

In the list of authorities attached to his petition, defendant cited Sorenson v. U. S., 8 Cir., 168 F. 785, and Schwyhart v. U. S., supra. Neither of these two cases supports defendant's contentions; neither of them dealt with the sufficiency of the indictment but rather with the sufficiency of the evidence upon which the respective defendants were convicted. It was held in both cases that the Government had failed to prove one or more of the essential elements of the offense. These decisions are not in point here; it is to be remarked in passing, however, that neither of the indictments in those cases charged an initial entry into the post office part of the buildings involved, and this fact excited no comment from the Court in either case.

Defendant places primary reliance upon McNealy v. Johnston, D.C. Cal., 30 F.Supp. 312, 314. The indictment in that case charged that petitioner "did unlawfully, wilfully, knowingly, feloniously, and forcibly break into a building, which was then and there used in part as a postoffice of the United States * * *, with the intent to commit larceny in said building." (Emphasis supplied.) The Court held this indictment bad because, according to the Court, it failed to "allege the two elements which are essential under section 192: First, breaking into the postoffice part of a building; and second, doing such an act with intent to commit...