*2
STONE, WOODROUGH, аnd
Before
JOHNSEN,
Judges.
Circuit
JOHNSEN,
Judge.
Appellants
jointly
were indicted
by
48 Stat.
amended
50 Stat.
588b,
12
robbing
U.S.C.A.
§
by
Deposit
insured
the Federal
Insurance
Corporation.
counts,
in two
The indictment was
sub-
based
charging
section
was
a and
that the
accompanied
em-
by
putting the
force
fear,
ployees of
bank in
and the second
charging
being based
b and
subsection
by put-
aсcompanied
was
ting
employees
bank’s
lives of the
weapons.
jeopardy by
They pleaded
dangerous
the use of
guilty to
indictment
given
each
consecutive sentences of
was
years
years
5
20
on the first count and
on
second.
approximately
having
After
served
they filed
penitentiary,1
federal
in the
separate
court for
motions in
district
20-year
an order to vacate the
indictment,
count of
on the first
ground
the crime
only a
constituted
them in
single
counts
the two
offense,
sentenceable
Cir.,
States,
110 F.2d
8
Hewitt v. United
Reeves,
1,2
Garrison v.
States, Cir.,
8
F.2d
United
130
988,3
was
on the first count
refused to make an
The trial court
void.
sentences,
absolute vacation
sought
motions.4
by the
“with, respect
Five,
prоvides,
1
years’
had
vacat-
order
only
ing
quite
time the mo-
the sentence as to
count
at
been
expired
void,
be null and
and to hold
but had
were filed
tions
part
particular
appeals
this
submission
judgment
and sentence
motion to vacate
Court.'
be,
2
one of indictment
60
on count
denied 310 U.S.
S.
Certiorari
hereby
denied.”
is
overruled
L.Ed. 1409.
84
Ct.
order, however,
pаragraph
3
Another
denied
Certiorari
provides that
the Court
it is “ordered
L.Ed. —.
unsigned
transcript
motion of the said above-named
contains
expressly
clerk,
and sen-
defendants
to vacate
entered
order
indictment be
overruling
tence on Count One
the sub-
Since
the motions.
extent,
here,
and to
ex-
to this
this
sustained
United
case
mission
only,
de-
Attorney
the sаid above-named
tent
filed a motion for
States
jurisdiction
transcript,
be returned
supplement
fendants
in-
leave
brought
open
appar-
order,
and be
into
signed
this Court
which was
clude
re-sentencing
entry
ently
filed
the intention
signed
with
paragraph
in accordance
clerk. One
Holiday cases
Hewitt,
sentence had
under the second
Garrison
bаsically
or count than on the first. What
precise situation
did not
involved,
responsibility
all of was
question
here involved.
matter,
true,
defendant of
we held that the
*3
it is
right
under
under
to have
sentence
vindicate
was entitled
the
jeop-
the Fifth
the sen-
Amendment
a vacated
allowed
subsection
and
stand,
ardy
punishment.
but in
subsection b to
tence under
present
each
than in the
of
different
no lan
The
itself contains
statute
case,
imposed
sen-
a heavier
court had
the
guage
court
restricting
right
the
b than
tence on
count under subsection
the
impose
particular
a sentence under
a,
the
on
the count under subsection
violated,
subsection that has been
where
decision,
far
practical
as
effect of our
so
there
been a conviction
more than
has
for
concerned,
re-
the defendant
was to
degree
one
of bank
offense. The
a
quire him to serve the heavier sentence.
therefore,
soundly
only limitation,
that can
case,
F.2d at exist
is
the con
There
in the Hewitt
situation
is
11,
a
expression
prohibition against subjecting
рage
that “no sentence stitutional
imposed
punishment
first defendant more than
should
under the
one
the
This
count of
case,
indictment.”
the Garrison
federal courts
the same crime.
the
right
hardly properly
is a
page
116 F.2d at
fundamental
can
twenty-five
transgressed
the
“the sentence of
to be
statement that
claimed
because
compelled
in-
imposed under count
to serve a sentence
two of
is
other,
petitioners was
one subsection instead of
dictment
these
under
violating
respects valid,
sen-
he
been convicted of
in all
but
that
where
has
justifiable
only
complaint”,
under
twenty years imprisonment
both.
“His
tence to
case,
law”,
Holiday
that as
said in
count
was not valid in
we
one
authority
page 989,
to at
“was that he
two
the trial
“was without
received
offense,
count”.
for one
in
impose
sentences
first
consecutive sentences
case,
page
single
In the
130 F.2d at
stead
a
sentence.”
of
opinion
in-
“It
is our
we said:
that
case,
In the
as in
Gar
dictment,
guilty
of
for the
Holiday cases,
rison and
the sentences were
sentence,
one
of
but
imposed
before
Hewitt case had been
offense,
was the
de-
may reasonably
decided.
It
be assumed
count;
scribed in the second
that
count
that
that
hereafter
this circuit
one
imposed
and the sentence
under
it were
imposed by
sentence will be
the trial courts
valid;
did not
below
for all convictions on an indictment under
sustaining
vacating
err in
that sentence and
the several subsections
imposed
the sentence
count.” statute,
in accordance with the Hewitt
ordinarily
and that
a
such
sentence will
suggestion
opinions
in these
be based on the subsection covering
a
under subsection a
sentence
of the statute
void,
aggravated degree
most
of
as
where
the convicted
treated
there also
should
b,
where,
here,
offense. But
has been a
under subsection
the court
should,
think,
light
imposed
read in the
a sentence
we
under more than
fact,
subsection,
practical
which we
with a
have indicated
penalty
heavier
above,
in all
offense,
lighter degree
these cases
heavier
and with
original
Oourt at the time the
counts,
sentences
turned for
re-sentence on both
imposed;
they
desired,
were
sentences hereto-
if
so
to allow them to
imposed upon
previous pleas
guilty
each count
the in-
fore
withdraw their
pending
be set aside
dictment
re-sentence
and to stand trial on the indictment. We
defendants;
and that
the defend-
the оrder to
construe
mean that both of
permitted,
they
desire,
original
if
ants be
so
sentences would be set aside
pleas
willing
have the
heretofore
en-
if
were
to submit them-
tered
aside and to stand
re-trial,
set
trial
selves to re-sentence or to a
but
lodged against
so,
merits
the indictment
orig-
if
refused to do
them.”
inal sentences were to stand. With this
signed
ambiguous,
construction,
order is
it
but
both the order entered
appears
deny
signed
have been
intended to
the clerk and the
order would
appellants’
request
legal
for an
eifect,
unconditional
have the same
far
pellants’
right
appeal
vacation
the first-count
sentences
is concerned.
grant
merely
to be re-
longer
legаl
provision in the order
satisfaction of either under
terms
the com- and
judgment.
sentence shall be
conditions
shorter,
legal
sound
mencement
no
parallel with
situation here is not
longer
can-
why
reason exists
parte Lange,
Ex
85 U.S.
real
properly
not
punishment
be made to
constitute
Bradley,
In re
Wall.
21 L.Ed.
Certainly
the offense.
-,
87 L.Ed.
situation,
nearly apрroaches, in
more
such
by ap-
nor has
contention been made
trial
measure
pellants
applicable
that these cases
ad-
judge believed and intended should be
cases,
controlling.
In both of
these
par-
ministered to the criminal
court
and
concurrent sentences
circumstances of the case.
ticular
imprisonment,
al-
where
statute
*4
lowed
imprisonment.
punishment
either fine or
of
neither
of itself is
Since
sentence
the
satisfied
statute,
the
the
invalid
the
terms of
payment
fine
as to
only invalidity in
situation derives
the
any attempt
to
the
was made
amend
sen-
prohibition against
the constitutional
from
accordingly
tence
in
order.
It was
held
punishment, justice
jeopardy or
double
both of these
since there had
cases
dictate,
case,
in
such a
reason
thus
of
valid
legal
been
satisfaction
court and not
right
defendant shall have
provision
original
alternative
tence,
sen-
of
say
to
which
two consecutive
attempt
compel
any
to
the defend-
sentences, contemporaneously imposed and
imprisonment portion
ant to
of
serve the
unexecuted,
both
shall be
in
eliminated
subjecting
would be
him to
sentence
subject the
order not to
defendant to the
punishment.
double
But here there was
punishment.
possibility of double
That
term,
legal
five-year
no
satisfaction
'may properly be
question
determined
out,
pointed
imprison-
as we have
beсause
up
the trial court
to
timé that there
sentence, by the
of
ment under that
the
terms
legal
been a
satisfaction
has
of one of
judgment,
was not to commence until
sentences,
appropriate
may
be
action
twenty-year
had been
sentence
served.
taken to vacate the sentence which
twenty-year
Until the
sentence had been
voided,
should be
in
concludes
order
vacated,
or
of
five-
satisfaction
upon
impinge
not
to
year
legally
have com-
would
sentence
punishment.
against double
menced to run.
In
case
can be no
any expressions
To the
in the
claim
of
has
extent
that either one
the sentences
Hewitt,
may
Holiday
cases
yet
legally
been
Garrison
satisfied. The sentence
appellants provided
appear
expressed
to
the views
conflict with
and
they
of
commitment
herein,
they
to be deemed modified
twenty-year
should first serve their
harmony
hereby
in
to be construed
five-year
and are
terms before their
terms
were
opinion.5
with this
commence.
Without
until
vacation
twenty-year sentence,
which was not
of
allowing
of
the lower
For
itself invalid under
terms of the
of
with the
proceed
court to
accordance
in
statute,
they
sentence
which
must
expressed,
without
am-
views
'regarded
serving.
If
now
records,
biguity in
the orders now
its
Holiday
situation had
case,
as in the
been'such
court,
pearing
in that
in
on the records
court,
bеfore the full satis
where
appellants
of
motions
connection with the
sentence,
or
of
faction
execution
aside, and
vacate,
will be
the cause
set
had determined to
sentence
vacate
first
deny
directions to
will
remanded with
second,*in
instead of the
order to vindicate
appellant for
the motion of each
an order
appellants’ rights
ment,
punish
double
twenty-year
vacating
sentence on the
during
they
time
which
had been
indictment, but
with di-
count of the
then,
course,
imprisoned would
have
five-year
rections to vacate
legally
become
referable to their second
count.
of each on
second
either
sentence.
in
situation
Since
proрer
receiving
would be
credit for
STONE,
Judge (concurring).
served, they can have no cause to
time
opinion
I
may
Judge
matter
c’oncur
in the
complain, no
which
.sentence
aside,
dissenting opinion
long as there
been no
Because the
set
Johnsen.
judges
approved
other
the modification
construc-
the Court who
Hewitt,
expressions
tion of
in those
Garrison and
cases
sat
cases,
partici-
opinion.
have not
but who
sat
or
pated
case,
the decision of
have
jeopardy,
it seems
second count
the indictment
is based
As
my
to that.
and on
to that
place
state
views as
their
authority,
the dissent
is based count
apprised
the court
matter of
the full
50, 63 S.Ct.
Bradley, 318 U.S.
offending.
measure of
The court
re
Ex
—,
follows
thereupon
power
87 L.Ed.
vested with the
became
Lange,
has been served. I think decision conflicts with Bradley, 50, 63 re L. case, exactly Ed. -. In that as in this one, court, empowered to assess crime, penalty defendant’s assumed two. Under the statute it could to assess *6 imprison, but it sentenced the de imprisonment. fine and fendant to both fine, paid and it was then defendant attempted, part to vacate (the fine) and of the sentence to inflict the arguments imprisonment. The for such a cogent рre than course were more government here. As was sented for pointed out the dissent of the Chief Jus tice, money the fine in that case could McCracken, Robert T. Philadelphia, been returned and defendant would suffer (Samuel Fessenden, Pa. nothing. Philadelphia, Here have suffered five Pa., brief), years imprisonment. appellant. case the year sentence in strict accord with law White, Thomas Raeburn Philadelphia, part the invalid the sentence Pa., appellee. with, while in is to be dealt that case no MARIS, JONES, Before and GOOD- could such distinction be drawn between RICH, Judges. parts appeared sentence. But the to the Supreme Court that defendant’s PER CURIAM. expiated, and crime had been it ordered his In this case the district court entered a discharge. prosecution Constitutional must summary judgment plaintiff in favor of the expiation. end with the defendant under Civil It late to write is too direction into the Procedure Rule following U.S.C.A. now to vacate the five 723c, records sen- section and ordered that the case duty proceed I think our tence. is the to trial for the determination of expiation damages the amount of of the crime to which the plaintiff imposed upon district is entitled. From court—the the order thus entered the took the discharge the from their im- appeal. protect prisonment and to from governmental and all further plaintiff molestation has moved to dismiss the for the same appeal ground crime. the order