United States v. Harris

• Decision Date: 21 February 1939
• Docket Number: No. 13816-Y.,13816-Y.
• Citation: 26 F. Supp. 788
• Parties: UNITED STATES v. HARRIS.
• Court: U.S. District Court — Southern District of California

26 F. Supp. 788

UNITED STATES v. HARRIS.

No. 13816-Y.

District Court, S. D. California, Central Division.

February 21, 1939.

Ben Harrison, U. S. Atty., and Ralph Lazarus, Asst. U. S. Atty., both of Los Angeles, Cal.

John S. Cooper, of Los Angeles, Cal., for defendant.

In an indictment returned by the Grand Jury for the Southern District of California on January 25, 1939, Richard Harris was charged in two counts with violation of Section 588b, Subdivisions (a) and (b) of Title 12 U.S.C.A. On February 7th, the defendant entered a plea of guilty to both. At the hearing before the sentence, it appeared that the charges in both indictments covered a single transaction, — namely, the act of the defendant, on December 22, 1938, in holding up at the point of a gun and taking from the possession of E. Walde, an employe of the Figueroa-Adams Branch of the Security First National Bank of Los Angeles, a national banking institution, the sum of $1,747. The court imposed a sentence of fifteen years on each of the counts of the indictment, ordering the imprisonment on the second count to begin and run concurrently with the imprisonment on the first count.

On February 21, the defendant appeared in court with his counsel and moved the court to vacate and modify the sentence and to re-sentence the defendant on one count only. It was contended that the sentence on both counts was invalid because both counts covered but one transaction.

YANKWICH, District Judge (after stating facts as above).

I felt when the motion was first urged yesterday that the question raised was immaterial, so far as the result in this particular case is concerned. For, assuming the contention to be correct, and applicable to this situation, in view of the fact that the two sentences have been ordered to run concurrently, the defendant cannot be harmed by the fact that he was sentenced on both counts.

However, the possible effect of the two sentences on the parole of the defendant has led me to study the legal aspects of the problem.

Such study convinces me that the sentences were correct.

When a statute denounces a series of acts or the doing of several things, but attaches one penalty only to them, the prosecutor, if he chooses less than all, and is unsuccessful, cannot then prosecute again under the portions of the statute which he chose to omit.

Again, if several acts are committed, at one time, such as libel, embezzlement, perjury, and the prosecutor chooses one specific libelous statement in the article, or one specific act of embezzlement, or perjury, he cannot, after being unsuccessful, prosecute anew. As said in People v. Stephens, 1889, 79 Cal. 428, 21 P. 856, 857, 4 L.R.A. 845: "The law does not permit a single individual act to be divided, so as to make out of it two distinct, indictable offenses. Drake v. State, 60 Ala. 42, 43. Although, when a man has done a criminal act, the prosecutor may carve as large an offense out of the transaction as he can. Yet he is not at liberty to cut but once."

Behind these principles is the fundamental thought that the prosecutor should not split one crime and prosecute it in parts. People v. McDaniels, 1902, 137 Cal. 192, 69 P. 1006, 59 L.R.A. 578, 92 Am.St.Rep. 81; People v. Preciado, 1916, 31 Cal.App. 519, 160 P. 1090; Rosenthal v. United States, 9 Cir. 1921, 276 F. 714.

Upon a verdict or plea of guilty, when different counts charge the same offense in a different manner, so as to avoid variance, or different degrees of the same offense, there can be but one sentence. Ex parte Farlow, D.C.Ga. 1921, 272 F. 910; United States v. Mazzochi, 2 Cir. 1935, 75 F.2d 497. However, when a statute denounces two different acts, conviction may be had under both, and two sentences imposed, despite the fact that one transaction only is involved. Massey v. United States, 8 Cir. 1922, 281 F. 293; Bell v. United States, 5 Cir. 1923, 285 F. 145; Singer v. United States, 3 Cir. 1923, 288 F. 695; Page v. United States, 9 Cir. 1922, 278 F. 41; Morgan v. Devine, 1915, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153.

To illustrate, in Parmagini v. United States, 9 Cir. 1930, 42 F.2d 721, the Circuit Court of Appeals for the Ninth Circuit dealt with an indictment charging violations of the Harrison Narcotic Act (26 U.S.C.A. § 692, now 26 U.S.C.A. § 1043) and the Jones-Miller Act (21 U.S. C.A. § 174).

It held that, although a single transaction was involved, it could be punished as a violation of both statutes. The court said: "Under this law concealment and sale are distinct offenses, and therefore each act is punishable, although both occur in connection with a single transaction. See, on this subject, Gavieres v. U. S., 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489; Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151; Roark v. U. S. (C.C.A.) 17 F.2d 570, 51 A.L.R. 870; Albrecht v. U. S., 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505. The count which states that the defendant sold morphine and concealed morphine states two distinct offenses whether the charge of selling is under the Jones-Miller Act (21 U.S.C.A. § 174) or under the Harrison Narcotic Law (26 U.S.C.A. § 692 now 26 U.S.C.A. § 1043). Therefore, consecutive sentences of five years for selling morphine and ten years for concealing morphine illegally imported were proper and in the discretion of the trial court might be made to run consecutively." Parmagini v. U. S., 9 Cir., 42 F.2d 721, 724, 725. (Italics added)

O'Brien v. United States, 7 Cir. 1931, 51 F.2d 193, 196, declares the same principle as to offenses relating to the evasion of income taxes. The majority of the court said: "Appellant argues that a count which charged appellant with having willfully failed to file a return for 1926 is the same as one charging him with having willfully attempted to evade and defeat the tax for 1926. With this position we cannot agree. Blockburger v. U. S., 50 F.2d 795, decided by this court June 11, 1931; U. S. v. Noveck, 273 U.S. 202, 47 S.Ct. 341, 71 L.Ed. 610. Congress may punish separately each step leading to the consummation of a transaction, which it has the power to prohibit, and also to punish the completed transaction. Albrecht v. U. S., 273 U.S. 1, 11, 47 S.Ct. 250, 71 L.Ed. 505."

The two cases decided by the Supreme Court which are cited in the opinion, are among the leading ones on the subject. In Albrecht v. United States, 1927, 273 U.S. 1, 47 S.Ct. 250, 253, 71 L.Ed. 505, the Court held that a person could be prosecuted for possession and sale of intoxicating liquor and that such prosecution did not amount to double punishment, although they concerned a single transaction. Mr. Justice Brandeis, writing for the court, said: "There is a claim of violation of the Fifth Amendment Const.U.S.C.A. by the imposition of double punishment. This contention rests upon the following facts. Of the nine counts in the information four charged illegal possession of liquor, four illegal sale and one maintaining a common nuisance. The contention is that there was double punishment because the liquor which the defendants were convicted for having sold is the same that they were convicted for having possessed. But possessing and selling are distinct offenses. One may obviously possess without selling, and one may sell and cause to be delivered a thing of which he has never had possession; or one may have possession and later sell, as appears to have been done in this case. The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offense. There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction. The precise question does not appear to have been discussed in either this or a lower federal court in connection with the National Prohibition Act 27 U.S.C.A. § 1 et seq.; but the general principle is well established. Compare Burton v. United States, 202 U.S. 344, 377, 26 S.Ct. 688, 50 L.Ed. 1057, 6 Ann.Cas. 362; Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489; Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L. Ed. 1153." Albrecht v. United States, 273 U.S. 1, 11, 47 S.Ct. 250, 71 L.Ed. 505.

In United States v. Noveck, 1927, 273 U.S. 202, 47 S.Ct. 341, 71 L.Ed. 610, it was claimed at the trial that the Revenue Act which made it an offense to attempt willfully, in any manner, to defeat or evade the income tax repealed the general perjury statute as applied to income tax returns. The trial court sustained the contention. The case was reversed. Once more Mr. Justice Brandeis wrote the opinion. He said:

"There was confessedly no express repeal; and it is clear that the two sections are not inconsistent. Noveck's contention is that a repeal was effected, because Congress manifested the intention of supplanting the provision of the Criminal Code, in so far as it relates to perjury in income tax returns, by embodying in the Revenue Act all provisions dealing with the various methods of defeating or evading taxes therein imposed. The argument is that section 253 of the Revenue Act includes within its condemnation any one `who willfully attempts in any manner to defeat or evade the tax imposed by this title'; that perjury to an income tax return is one manner or method of defeating or evading the tax; and that, since all methods are made punishable under ...