Wells v. United States, 10079.

Citation124 F.2d 334
Decision Date12 January 1942
Docket NumberNo. 10079.,10079.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

124 F.2d 334 (1941)


No. 10079.

Circuit Court of Appeals, Fifth Circuit.

December 16, 1941.

Rehearing Denied January 12, 1942.

Selvie W. Wells, in pro. per., Alcatraz Island, Cal., for appellant.

Ben F. Foster, U. S. Atty., of San Antonio, Tex., for appellee.

Before HUTCHESON and HOLMES, Circuit Judges, and DAWKINS, District Judge.

HOLMES, Circuit Judge.

Appellant entered a plea of guilty to an indictment in four counts charging the robbery of a bank in violation of the federal statute. 48 Stat. 783, 12 U.S.C.A. § 588b. The counts charged (1) forcible robbery of a state bank insured by the Federal Deposit Insurance Corporation under 12 U.S.C.A. § 264, by force and violence and putting in fear; (2) assault upon a person in the commission of the offense; (3) robbery of the bank by putting the life of a person in jeopardy by the use of a dangerous weapon; and (4) entering the bank with the intention of committing robbery, a felony, therein. He was sentenced to the maximum imprisonment

for each count, to be served consecutively

A motion was filed in the court below alleging that the sentences were in excess of the maximum punishment provided by the statute, for the reason that the second and third counts charged the commission, in aggravated form, of the same crime charged in the first count, and separate maximum sentences thereon constituted double and triple jeopardy; that the sentences, therefore, were void and should be vacated; and that the prisoner should be brought before the court for resentence. The motion was denied, and this appeal followed.

Section 588b(a), supra, creates four separate and distinct crimes. Two of these, robbery of a bank by force and violence and putting in fear, and entry of a bank with the intent to commit a felony therein, were charged by counts one and four, respectively. Section 588b(b) creates no separate offense, but it provides for increased punishment if the crimes named in subsection (a) are committed under aggravated circumstances. For each offense committed under subsection (a), the statute contemplates but one sentence, the severity thereof depending upon the manner of its perpetration.1

Count one of the indictment charged the robbery of a bank by force and violence and putting in fear. Counts two and three charged that this offense was committed in aggravated form. Conviction under the first three counts therefore constitutes a conviction of the single crime of...

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36 cases
  • Stevenson v. Johnston, 26903.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • October 9, 1947
    ...of Holbrook v. United States, 8 Cir., 136 F.2d 649. 8 Dimenza v. Johnston, 9 Cir., 130 F. 2d 465; Wells v. United States, 5 Cir., 124 F.2d 334; Miller v. United States, 2 Cir., 147 F.2d 372, as held by District Court on remand; United States v. Holiday, D.C., 44 F.Supp. 747, affirmed 8 Cir.......
  • Prince v. United States, 132
    • United States
    • United States Supreme Court
    • February 25, 1957
    ...of the Fifth Circuit affirmed consecutive sentences for robbery and entering with intent to commit robbery. Wells v. United States, 124 F.2d 334. However, the prisoner, appearing pro se, had not raised a question of merger of these offenses in that proceeding. When he tried to do so later, ......
  • Miller v. United States, 195.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 20, 1945
    ...in others, it was under Subd. (a). Some of the cases, viz., Dimenza v. Johnston, 9 Cir., 130 F.2d 465 and Wells v. United States, 5 Cir., 124 F.2d 334, treat the first count as merged in the second. Some of them, viz., Coy v. Johnston and Holbrook v. United States, where the greater sentenc......
  • Jordan v. United States District Court for Dist. of Col., Misc. No. 462
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 12, 1956
    ...588b(a), but merely as providing for longer sentence when the aggravating element is present, Wells v. United States, 5 Cir., 1941, 124 F.2d 334 certiorari denied, 316 U.S. 661, 62 S.Ct. 941, 86 L.Ed. 1738, rehearing denied, 1942, 316 U.S. 708, 62 S.Ct. 1039, 86 L.Ed. 1775; Durrett v. Unite......
  • Request a trial to view additional results

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