Wilson v. United States, 10711.
Decision Date | 10 November 1944 |
Docket Number | No. 10711.,10711. |
Citation | 145 F.2d 734 |
Parties | WILSON v. UNITED STATES. |
Court | U.S. Court of Appeals — Ninth Circuit |
Raymond John Wilson, in pro. per.
Charles H. Carr, U. S. Atty., and James M. Carter, and V. P. Lucas, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.
Before MATHEWS, STEPHENS, and HEALY, Circuit Judges.
Appellant was indicted for violating § 588b of Title 12 U.S.C.A. The indictment was in two counts. Appellant pleaded guilty to both counts. Thereupon, on May 20, 1941, judgment was entered sentencing appellant to be imprisoned for seven years and six months on each count, the two sentences to run consecutively. On July 24, 1941, that judgment was vacated and a judgment was entered sentencing appellant to be imprisoned for seven years and six months on count 1 and for two years and six months on count 2, the two sentences to run consecutively. On December 17, 1943, appellant moved to vacate the judgment of July 24, 1941, hereafter called the judgment. From an order denying the motion this appeal is prosecuted.
The ground of the motion was that the judgment imposed two sentences for a single offense.1 The judgment did impose two sentences — one on each of the two counts of the indictment — and did so upon the evident assumption that the two counts charged two distinct offenses. The motion challenged that assumption and asserted that the two counts charged a single offense.
Count 1 was based on subsection (a) of § 588b. Count 2 was based on subsections (a) and (b) of § 588b. Subsections (a) and (b) provide:
Subsection (b), as we construe it, does not define an offense distinct from the offense defined in subsection (a). It does prescribe minimum and maximum penalties for an aggravated form of the offense defined in subsection (a). These penalties are in lieu of, and not in addition to, those prescribed in subsection (a). In so construing subsection (b), we reaffirm Dimenza v. Johnston, 9 Cir., 130 F.2d 465, which followed Durrett v. United States, 5 Cir., 107 F.2d 438; Hewitt v. United States, 8 Cir., 110 F.2d 1; Wells v. United States, 5 Cir., 124 F.2d 334, and was followed by Lockhart v. United States, 6 Cir., 136 F.2d 122; Coy v. Johnston, 9 Cir., 136 F.2d 818. See, also, Holiday v. Johnston, 313 U.S. 342, 550, 61 S.Ct. 1015, 85 L.Ed. 1392.
Count 1 charged that on or about March 12, 1941, at Los Angeles, California, the defendants (appellant and four others) "did knowingly, wilfully, unlawfully and feloniously, and by putting in fear, take and attempt to take from the presence of another, to-wit, one Roger W. Haglund, certain money, that is to say, the sum of $1,105.70, belonging to, and in the care, custody, control, management and possession of the Broadway and 54th Street Branch of the Citizens National Trust and Savings Bank, which said bank was then and there organized and operating under the laws of the United States and was then and there a member of the Federal Reserve System." Thus count 1 charged an offense defined in subsection (a). It did not charge any aggravating circumstance.
Count 2 charged that at the time and place aforesaid, the defendants "did knowingly, wilfully, unlawfully and feloniously commit an offense defined in subsection (a) of section 588b, Title 12 United States Code, in that they, the said defendants, did knowingly, wilfully, unlawfully, and feloniously, and by putting in fear, take and attempt to take from the presence of Roger W. Haglund certain money, that is to say, the sum of $1,105.70, belonging to, and in the care, custody, control, management and possession of the Broadway and 54th Street Branch of the Citizens National Trust and Savings Bank which said bank was then and there organized and operating under the laws of the United States and was then and there a member of the Federal Reserve System; that in committing said offense defined in subsection (a) of section 588b, Title 12 United States Code, the said defendants did then and there knowingly, wilfully, unlawfully and feloniously assault the said Roger W. Haglund and put in jeopardy the life of said Roger W. Haglund by use of dangerous weapons, to-wit: a sawed-off shotgun and a .45 caliber automatic pistol." Thus count 2 charged the identical offense charged in count 1 and, in addition, charged aggravating circumstances.
It is clear, therefore,...
To continue reading
Request your trial-
United States v. Faleafine
...(a) and (d) sentences were concurrent with a life sentence under subsection (e). None of the sentences was vacated. Wilson v. United States, 9 Cir., 1944, 145 F.2d 734. One count under subsection (a), another under (d), (former (b)). Sentences consecutive. Held, only one offense charged; se......
-
Ekberg v. United States
...the accused is convicted on both counts, sentences cannot lawfully be imposed on both counts, to run consecutively. Wilson v. United States, 9 Cir., 1944, 145 F.2d 734; Miller v. United States, 2 Cir., 1945, 147 F.2d 372. The same is true of the crimes of larceny and robbery under 18 U.S.C.......
-
Stevenson v. Johnston, 26903.
...of the indictment." The doctrine of merger has similarly been announced in United States v. Murray, D.C., 57 F.Supp. 590; Wilson v. United States, 9 Cir., 145 F.2d 734; Hewitt v. United States, 8 Cir., 110 F.2d 1, certiorari denied, 310 U.S. 641, 60 S.Ct. 1089, 84 L.Ed. 1409, and United Sta......
-
Burke v. United States, 1439.
...11, and cases collected therein. 17. Peeler v. United States, supra, note 13; United States v. Lynch, supra, note 13. 18. Wilson v. United States, 9 Cir., 145 F. 2d 734; Bozel v. United States, supra, note 19. See McIntosh v. Pescor, 6 Cir., 175 F. 2d 95; Lockhart v. United States, 6 Cir., ......