United States v. Donovan, 239

• Decision Date: 06 March 1957
• Docket Number: No. 239,Docket 24421.,239
• Citation: 242 F.2d 61
• Parties: UNITED STATES of America, Appellee, v. Robert L. DONOVAN, Albert Andrews and Hyman Cohen, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

242 F.2d 61 (1957)

UNITED STATES of America, Appellee, v. Robert L. DONOVAN, Albert Andrews and Hyman Cohen, Appellants.

No. 239, Docket 24421.

United States Court of Appeals Second Circuit.

Argued January 16, 1957.

Decided March 6, 1957.

Paul W. Williams, U. S. Atty. for Southern Dist. of New York, New York City (Adelbert C. Matthews, Jr., David Jaffe and Maurice N. Nessen, Asst. U. S. Attys., New York City, of counsel), for appellee.

Jacob W. Friedman and Frank E. Healy, New York City, for appellants.

Before MEDINA and HINCKS, Circuit Judges, and LEIBELL, District Judge.

MEDINA, Circuit Judge.

Appellants were indicted on three counts. The first charged an assault upon on a postal employee with intent to rob the mail. The second charged the same offense in aggravated form, alleging that appellants put the postal employee's life in jeopardy by using a dangerous weapon while attempting to rob the mail. These counts were based on 18 U.S.C. § 2114. The third count charged that appellants conspired to assault the postal employee with intent to rob him of mail matter in violation of the general conspiracy statute, 18 U.S.C. § 371. The jury returned a verdict of guilty on each count, and the District Judge sentenced each appellant to imprisonment for twenty-five years on the second count and, concurrently, for five years on the third count; but he imposed no sentence on the first count.

No detailed statement of the facts is necessary. Suffice it to say that each of the appellants played his separate role in a scheme which culminated in an attempt to rob United States mail truck No. 2206 after it left the Greenwich Village Station Post Office on September 10, 1954. As the mail truck stopped at a red light defendant Donovan, dressed as a mail carrier, opened the door of the truck, sat down and held a loaded revolver against the side of the driver. Before he could accomplish his purpose detectives were upon him and he was apprehended.

Eleven "grounds of appeal" are listed in the appellants' brief. While we have examined each with the care due litigants whose personal liberty is at stake, we have concluded that all but two are so wholly without merit as not to require discussion. The two we shall discuss are: (1) that the trial judge improperly charged the jury as to the meaning of "jeopardy" as used in 18 U.S.C. § 2114; and (2) that it was error to rule that he lacked power to suspend sentence on the second count.

I

Section 2114 provides:

"Whoever assaults any person having * * * custody of any mail matter * * * of the United States, with intent to rob, steal, or purloin such mail matter * * * or robs any such person of mail matter * * * shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail * * * or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned for twenty-five years."

The District Court charged the jury that the statutory phrase "puts his life in jeopardy" means "that the postal employee must have been put in fear of being killed or in danger of being killed. It is not a question of whether the defendants planned to kill him or intended to kill him," the Court continued. "It is a question of whether he was put in fear or danger of being killed * * *." It was enough to convict under these instructions if the jury believed that the postal employee was put in fear of being killed, even though the jury also should determine that the employee's life was actually not in danger.

The ordinary dictionary definition of "jeopardy," however, suggests a different meaning. That term is commonly defined as referring to an objective state of danger, not to a subjective feeling of fear.¹ Doubtless, dictionary meanings are not always infallible guides, but that meaning is the one that best fits the phrasing of this statute. "Jeopardy" appears in the phrase "puts his life in jeopardy." To construe that word as meaning "fear" would result in the phrase "puts his life in fear," which would indeed be a strange use of language. Persons are put in fear, lives are not; they are put in danger.

Moreover, this meaning is the most appropriate one in view of the two degrees of mail robbery defined in the statute. The Congress declared that one who assaults a postal employee with intent to rob the mails is punishable by a term of 10 years, but that the punishment should be 25 years if the employee's life was put in jeopardy by the use of a dangerous weapon. We think the Congress intended a significant difference between the assault punishable by 10 years' imprisonment and the assault punishable by 25 years' imprisonment. That difference, we believe, was meant to be, not whether the employee was put in fear, but whether his life was put in danger by the use of a dangerous weapon. Thus, the jury must find that an accused put a postal employee's life in danger before it may properly find him guilty of the aggravated crime defined in the latter part of Section 2114.

The earlier case law on this point is confusing. When the question first arose in 1818, the court held that "putting his life in jeopardy" meant "putting the mail carrier in fear and his life in peril or danger." United States v. Wood, 28 Fed.Cas. pages 755, 759, No. 16,757. Twelve years later the...