Waldon v. United States

• Decision Date: 12 May 1949
• Docket Number: Cr. No. 15076.
• Citation: 84 F. Supp. 449
• Parties: WALDON v. UNITED STATES.
• Court: U.S. District Court — Eastern District of Illinois

84 F. Supp. 449

WALDON v. UNITED STATES.

Cr. No. 15076.

United States District Court E. D. Illinois.

May 12, 1949.

No appearance for petitioner.

Ray M. Foreman, Assistant United States Attorney, Danville, Ill., for respondent.

LINDLEY, Chief Judge.

Defendant has filed a motion to vacate the judgment of conviction under Section 2255, Title 28 U.S.C.A. The Government has moved to dismiss said motion upon the ground that it is, on its face, without merit.

Defendant was convicted in this court in February, 1940, on a seven count indictment arising out of an attempt to rob a United States mail car. The first three counts charged him with destroying certain mail matter, i. e., three letters addressed to three different persons, 18 U.S.C.A. § 317 now § 1708; counts four and five charged defendant with separate assaults upon two custodians of the mail, with intent to steal the mail, 18 U.S.C.A. § 320 now § 2114; count six with wounding one custodian, 18 U.S.C.A. § 320; and count seven with jeopardizing the other custodian's life by the use of a revolver, 18 U.S.C.A. § 320.

The jury found him guilty on all seven counts, and sentences were entered as follows:

Counts 1, 2, 3, 4 and 5, 5-year consecutive sentence on each count;

Count 6, 25 years and $10,000 fine;

Count 7, 25 years and $10,000 fine; the sentence on counts 6 and 7 to run consecutively with each other but concurrently with sentences imposed on counts 1, 2, 3, 4 and 5 of the indictment.

Section 320, Title 18 U.S.C.A., did not provide for the imposition of a fine. The court, recognizing this error, subsequently modified the sentence, nunc pro tunc, by eliminating the fines imposed on counts 6 and 7.

Defendant appealed, assigning, among others, the following errors:

(1) The court erred in refusing to sustain the motion of the defendant challenging the array of the petit jury, on the ground that women were not included in the venire, contrary to Illinois law at the time of the trial.

(2) It was reversible error to permit the District Attorney to cross examine the defendant concerning a sentence he had served in the Illinois State Farm.

(3) The court erred in sentencing the defendant to a term aggregating 50 years, for the reason that the several counts upon which such sentence is based constitute in fact one single transaction, the maximum penalty for which is 25 years.

In the Court of Appeals, the only error pressed was the admission of evidence concerning defendant's former conviction. The court held that such evidence was proper, and affirmed the conviction. United States v. Waldon, 7 Cir., 1940, 114 F.2d 982, certiorari denied, 312 U.S. 681, 61 S. Ct. 549, 85 L.Ed. 1119.

Defendant, on September 5, 1944, filed in the Court of Appeals for the Seventh Circuit, a "Petition for rehearing or for leave to proceed on motion in the trial court for resentence," in which he contended that only one offense was charged in the seven counts of the indictment and that the evidence was insufficient to support his conviction under counts 1, 2, and 3. In a per curiam opinion, the court denied him any relief, saying: "The important point sought to be raised here is whether or not the statute authorizes the imposition of separate sentences under counts six and seven. The statute provides: `Whoever shall assault any person having lawful charge * * * of any mail matter * * * with intent to rob * * * such 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 shall wound the person having custody of such mail * * * or put his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned twenty-five years.' It might appear that this contemplates offenses arising out of one robbery, so that two assaults on the same robbery or attempted robbery would sustain only one count of assault. However, Section 312 now § 1706, relating to injuring mail bags has been construed to sustain separate counts, separately punishable, for each mail bag injured during the course of one robbery. Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151. This ruling seems equally applicable to Section 320 now § 2114. Hence no error appears in the consecutive sentences of 25 years under counts six and seven."

Defendant contends now, first, that the conviction was invalid because women's names did not appear on the petit jury panel. Defendant was indicted on September 6, 1939, and tried on February 5, 1940. The Illinois statute making women competent jurors became effective July 1, 1939, Ill.Rev. Stat.1947, c. 78, §§ 1, 25. However, the county board of each county was given until September 1939 to include women on their panels. The petit jury panel for the September, 1939, term of this court was chosen August 3, 1939, pursuant to order of the court of that day. The court records do not disclose whether names of women had at that time been placed in the jury box. Although defendant was not tried until February, 1940, his trial occurred during the September, 1939, term of court, extended by order of court on September 30, 1939 and not adjourned until March 2, 1940. Under similar circumstances it was held in Glaser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L.Ed. 680, that the absence of women from the jury panel did not render the proceedings defective.

Moreover, defendant has waived any right to object to the jury at this late date. On appeal, he assigned the omission of women as error, but did not argue it. He cites Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181, in an effort to show that he has not waived the question. There, there was a motion to quash and a challenge to the array because women were not on the panel. Denial of the motion was assigned as error. Without passing on the question, the Court of Appeals reversed on another ground. 9 Cir., 152 F.2d 941. The Supreme Court granted certiorari, 327 U.S. 773, 66 S.Ct. 816, 90 L. Ed. 1002, reversed the Court of Appeals, and remanded the case to that court for further proceedings. The jury issue was then argued, and decided by the Court of Appeals. Under these circumstances, the Supreme Court held that defendants had not lost the right to urge the jury question. Thus, it is apparent that the Ballard case is not applicable to the facts at bar.

Defendant next contends that there was a total absence of any evidence to support the conviction as to counts 1, 2 and 3. But the Court of Appeals said: "All of the material allegations of each count of the indictment were abundantly supported by substantial evidence". United States v. Waldon, 7 Cir., 114 F.2d 982, 983.

It is insisted that cumulative sentences on Counts 1, 2 and 3 were invalid because all three counts charge only one offense.

These counts were drawn under Section 317 now § 1708, Title 18 U.S.C.A., which is in part as follows: "Whoever shall steal, take, or abstract, or by fraud or deception obtain, or attempt so to obtain, * * * any letter, postal card, package, bag, or mail, * * * or shall secrete, embezzle, or destroy any such letter, postal card, package, bag, or mail, * * * shall be fined not more than $2,000 or imprisoned not more than five years, or both."

Count 1 charged defendant with destroying certain mail matter, a letter addressed to Mrs. Rose Holtzman. Counts 2 and 3 were the same except that they charged destruction of letters addressed to two other persons. The evidence showed that these three letters had been tied together with a string, and that all three had been perforated by a bullet. It is not clear as to whether the letters were pierced by one or more missiles but the record rather indicates that they were pierced by one bullet. Defendant contends that the simultaneous perforation of a package of three letters by a bullet is one indivisible act constituting but one violation of Section 317 so that only one five-year sentence was proper.

In Ex parte Lagomarsino, D. C., 13 F.Supp. 947, affirmed in Johnston, Warden, v. Lagomarsino, 9 Cir., 88 F.2d 86, defendant had pleaded guilty to three counts under Section 317, charging him with stealing three separate parcels from one mail bag. He was sentenced to five years on each count. In granting a writ of habeas corpus, the court said, 13 F. Supp. at page 948: "It can hardly be seriously contended that section 194 would authorize a sentence of fifty years if a person filched ten letters simultaneously from a mail box — such a far-fetched intent cannot be imputed to Congress. The foregoing decisions indicate counts 3, 4, and 5 were all based on the same transaction and that Lagomarsino could receive only one sentence for abstracting the parcels in question. Therefore, counts 4 and 5, being merely repetitions of count 3, were contrary to law and void and afforded no basis for any sentence. * * * Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151, appears distinguishable."

In Kerr v. Squier, Warden, 9 Cir., 151 F.2d 308, defendant pleaded guilty to three separate counts drawn under Section 317, in which he was charged with stealing three separate mail bags. He was sentenced to five years on each count. In a habeas corpus proceeding the court sustained his contention that the simultaneous taking of three mail bags was but one offense for which the maximum penalty was five years. Johnston, Warden, v. Lagomarsino, 9 Cir., 88 F.2d 86, was cited with approval. In distinguishing Ebeling v. Morgan, 237 U.S. 625, 626, 35 S.Ct. 710, 59 L.Ed. 1151, the court said: "That case involved a different statute, section 189 of the criminal code, 18 U.S.C.A. § 312 now § 1706, creating the offense of cutting mail bags with a criminal intent. The facts there were that there was a cutting `successively' of the bags. * * * That case (Ebeling v. Morgan) neither states nor holds anything concerning the taking of mail bags. That case involved solely the cutting of bags,...