Young v. Boles

• Decision Date: 05 March 1965
• Docket Number: No. 9472.,9472.
• Parties: Albert YOUNG, Appellant, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

343 F.2d 136 (1965)

Albert YOUNG, Appellant, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Appellee.

No. 9472.

United States Court of Appeals Fourth Circuit.

Argued January 6, 1965.

Decided March 5, 1965.

Arthur M. Recht, Wheeling, W. Va. (Court-assigned counsel), for appellant.

George H. Mitchell, Asst. Atty. Gen. of W. Va. (C. Donald Robertson, Atty. Gen., of W. Va., on brief), for appellee.

Before SOBELOFF, BRYAN and BELL, Circuit Judges.

ALBERT V. BRYAN, Circuit Judge.

Relief from life imprisonment imposed by a State court in West Virginia was asked of the Federal district court by Albert Young in an application for habeas corpus. The sentence was passed, and was statutorily permissible, upon a conviction of armed robbery. The point of the petition is, in effect, that the indictment and the evidence charged and established no more than the offense of unarmed robbery with the statutory maximum punishment of 18 years and, therefore, the judgment for incarceration beyond that period is a deprivation of his liberty without due process of law. In dismissing the petition, the District Judge found no abridgment of Constitutional rights because, he concluded, the indictment embraced and the proof sustained all of the elements of armed robbery as specified by the West Virginia statute. We affirm.

The statute, Code 61-2-12 (Michie Sec. 5927) reads:

"* * * If any person commit, or attempt to commit, robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than ten years. If any person commit, or attempt to commit, a robbery in any other mode or by any other means, * * * he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than five nor more than eighteen years."

The robbery denounced in the statute is the common law crime, accepted in West Virginia as a felonious taking of money or goods of value from the person of another or in his presence, against his will, by force or putting in fear. The statute only prescribes the penalty; it does not delineate the offense. State v. Young, 134 W.Va. 771, 61 S.E.2d 734, 739 (1950).

The indictment charges that the petitioner here:

"* * * in and upon one Billy R. Russell, unlawfully and feloniously did make and assault, and him, the said Billy R. Russell unlawfully and feloniously did strike and beat and do violence to his person, and him, the said Billy R. Russell, in bodily fear feloniously did put, and $484.19 in lawful United States currency of the value of $484.19 of the money, goods and chattels of the said Billy R. Russell, and lawfully in his control and custody, from the person and against the will of the said Billy R. Russell, then and there, to wit: on the day and year aforesaid, in the County aforesaid, unlawfully, feloniously and violently did steal, take and carry away, against the peace and dignity of the State."

The allegations of striking, beating and doing violence are the premises bringing the robbery within the first sentence of the statute, which imposes a punishment by confinement in the penitentiary for at least 10 years and thus allows imprisonment for life. As the State courts in this and prior cases have held, we too think the indictment makes out a case of armed robbery; it sufficiently apprises the accused of this charge.^* State ex rel. Vascovich v. Skeen, 138 W.Va. 417, 76 S.E.2d 283, 285 (1953), cert. denied, 346 U.S. 916, 74 S.Ct. 277, 98 L.Ed. 411; State v. Alvis, 116 W.Va. 326, 180 S.E. 257 (1935).

As petitioner Young urges that his proven acts do not come within the statutory elements of armed robbery as they are embodied in the indictment, we turn to what he did. Russell was the manager of the Beneficial Finance Company in Charleston, West Virginia. On the morning of November 28, 1961, he was in the company office with the cashier and the assistant manager. Shortly before noon petitioner Young entered the office, drew a pistol and by its presentation and his words threatened to kill them unless they turned over to him the moneys of the company in their care. In his left hand he held what he stated was a bomb. After obtaining several hundred dollars in this way, he forced...