United States v. Doss, Civ. A. No. 9320.

• Court: U.S. District Court — Western District of Louisiana
• Writing for the Court: PORTERIE
• Citation: United States v. Doss, 66 F.Supp. 243 (W.D. La. 1946)
• Decision Date: 20 June 1946
• Docket Number: Civ. A. No. 9320.
• Parties: UNITED STATES v. DOSS.

66 F. Supp. 243

UNITED STATES v. DOSS.

Civ. A. No. 9320.

District Court, W. D. Louisiana, Lake Charles Division.

June 20, 1946.

Malcolm E. Lafargue, U. S. Atty., and John H. Overton, Jr., Asst. U. S. Atty., both of Shreveport, La., for plaintiff.

Dan Doss, in pro. per.

PORTERIE, District Judge.

On this motion by defendant to vacate and set aside the judgment and sentence, we are adopting as our opinion practically verbatim the brief of the district attorney.

Defendant was indicted on June 5, 1939, the indictment containing five counts, the first of which charged that he did "forcibly break into and attempt to break into, the Post Office of the United States at Starks, Louisiana, with intent then and there to commit in such Post Office larceny of property contained therein". The remaining four counts of the indictment charged that the defendant did steal and carry away from said post office money, stamps, Treasury checks and money orders, each of these items being the basis of one count. Defendant subsequently pleaded guilty and was sentenced to serve five years in the United States Penitentiary at Atlanta, Georgia, on the first count, and on the remaining counts of the indictment imposition of sentence was suspended and defendant was ordered placed on active probation for a period of five years after the expiration of the sentence on count one.

Defendant sets forth in his motion to vacate and set aside the judgment of sentence that the entire transaction involved in the crime constituted a single offense and that the court was without jurisdiction to place him on probation after imposing a sentence of five years in the penitentiary. He has cited in his motion certain authorities, most of which are State rather than Federal cases, and has given as authorities certain Circuit Court of Appeal cases which upheld his position. The decision in the case of Halligan v. Wayne, 9 Cir., 179 F. 112, 102 C.C.A. 410, supports the position of defendant in holding that one who breaks and enters a post office with the intent to commit larceny, and then commits the larceny at the same time as a part of the same transaction commits only one offense.

Subsequent to the rendition of the decision in the Halligan case, the United States Supreme Court decided the identical question in Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 713, 59 L.Ed. 1153. In that case the defendant pleaded guilty to an indictment containing two counts. The first count charged that he unlawfully and forcibly broke into and entered a post office of the United States with the intent to commit larceny, and the second count charged him with stealing certain property and monies of the United States then and there in use by and belonging to the Post Office Department of the United States. The defendant was given sentences to run consecutively aggregating more than the maximum penalty on one count. Having served the larger part of the sentence under the first count, application was made for habeas corpus and the lower court entered an order discharging the defendant from imprisonment at the expiration of the term under the first count. The Supreme Court in reversing the decision said as follows:

"Whether, under these sections of the statute, two offenses in the same transaction may be committed and separately charged and punished, has been the subject of consideration in the Federal courts, and the cases in those courts are in direct conflict. In Halligan v. Wayne, 9 Cir., 179 F. 112, and Munson v. McClaughry 8 Cir., 198 F. 72, 42 L.R.A.,N.S., 302, it was held that upon conviction on an indictment containing two counts, one charging burglary with intent to commit larceny, and the other larceny, upon a general verdict of guilty, there can be but a single sentence, and that for the burglary only; and that after the defendant has served a sentence for that offense he is entitled to release on habeas corpus. The rule has been held to be otherwise in Ex parte Peters, C.C., W.D.Mo., 12 F. 461, and in Anderson v. Moyer, D.C.,N.D.Ga., 193 F. 499.

"We think it is manifest that Congress, in the enactment of these sections, intended to describe separate and distinct offenses, for in § 190 18 U.S.C.A. § 313 it is made an offense to steal any mail bag or other property belonging to the Postoffice Department, irrespective of whether it was necessary, in order to reach the property, to forcibly break and enter into a postoffice building. The offense denounced by that section is complete when the property is stolen, if it belonged to the Postoffice Department, however the larceny be attempted. Section 192 18 U.S.C.A. § 315 makes it an offense to forcibly break into or attempt to break into a postoffice, with intent to commit in such postoffice a larceny or other depredation. This offense is complete when the postoffice is forcibly broken into, with intent to steal or commit other depredation. It describes an offense distinct and apart from the larceny or embezzlement which is defined and made punishable under § 190. If the forcible entry into the postoffice has been accomplished with the intent to commit the offenses as described, or any one of them, the crime is complete, although the intent to steal or commit depredation in the postoffice building may have been frustrated or abandoned without accomplishment. And so, under § 190, if the property is in fact stolen, it is immaterial how the postoffice was entered, whether by force or as a matter of right, or whether the building was entered into at all. It being within the competency of Congress to say what shall be offenses against the law, we think the purpose was manifest in these sections to create two offenses. Notwithstanding there is a difference in the adjudicated cases upon this subject, we think the better doctrine recognizes that, although the transaction may be in a sense continuous, the offenses are separate, and each complete in itself."

The decision in the Morgan case put at rest all previous conflict...