Meyers v. United States
116 F.2d 601
5th Cir.
1941
Check Treatment

MEYERS v. UNITED STATES

No. 9498

Circuit Court of Appeals, Fifth Circuit

Dec. 5, 1940

On Rehearing Jan. 9, 1941

116 F.2d 601

the First day of June, 1933, made and entered into by and between the party of the first part herein as Lessor, and the party of the second part herein as Lessee, is hereby fully cancelled and annulled and made of no further force or effect whatsoever from and after the date hereof, and each of the parties hereto fully releases and relieves the other of and from all obligations thereunder hereafter accruing.”

From all this, it clearly appears that defendant did not consider the lease contract or the consignment contract annulled and for that reason was anxious to obtain the execution of the new lease or the termination agreement terminating thе prior contracts.

The lease contract and the consignment contract were executed on the same day by the same parties and as a part of the sаme transaction. The contracts must be considered together to evidence the purpose in the minds of the parties to the agreements and they are to be considered as a single transaction. The consideration flowing to the respective parties can be determined only by considering the contracts as one instrument.

. Viewed in this light thе purpose of defendant in the execution of these contracts was to procure an additional outlet for the sale of its products, free from competition by others engaged in a like business. The lease contract specifically states that the consideration prompting defendant in the execution of the agreement was to secure the representation and sale of its products upon and from the demised premises. In the lease contract plaintiff bound himself not to permit the use of аny adjoining premises in which he had an interest for the sale of competing products other than those of defendant. The contract prohibited him from leasing to others any аdjoining premises to be used as a service station or storing or selling from any adjoining premises any oil or gasoline products, save that he could sell therefrom or permit the sale therefrom of products of defendant. Plaintiff bound himself to handle on the premises only products of the defendant and to sell them at such prices as were fixed by the defendant. He bound himself not to offer premiums or discounts or resort to any other device whereby the net selling price of gasoline consigned by defendant to the agent should bе lower than that authorized by defendant. He agreed to maintain on the ‍​​​​‌‌​‌​​‌‌​​‌‌‌‌‌‌‌​‌​‌​‌​​​‌​​​‌‌​​‌‌​​‌‌‌​‌‌‍premises a sign conspicuously displaying the name of the agent or of the service station, togethеr with the words, “Authorized Filling Station for Shell Products.” In return, the defendant bound itself to pay to plaintiff a compensation as fixed in the consignment contract, and in addition thereto, what wаs designated as a rental of one cent per gallon for each and every gallon of gasoline delivered to and sold through the station. Defendant got all it bargained fоr. There is no evidence in the record that plaintiff sold any gasoline through this station in violation of any of the terms of the contract. Defendant received all the benefits whiсh it sought through the execution of these contracts, and the only basis for its refusal to pay what it agreed to pay was that the oral agreement between Johnson and plаintiff violated the prohibition of the consignment contract against assignment. We have held that such was not the effect of the oral contract, but if it be conceded, for thе sake of argument, that it did violate the provision against assignment, the violation was waived by defendant‘s conduct in recognizing the continued existence of the contract, by continuing operations thereunder and taking all the benefits contemplated by the agreement.

Reversed and remanded.

H. L. Meyers, in pro. per.

William P. Fonville, Asst. U. S. Atty., of Fort Worth, Tex., for appellee.

Before SIBLEY, HOLMES, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

On a plea of guilty to an indiсtment in the Northern District of Texas charging an offense of attempted robbery of a bank‘s effects under 12 U.S.C.A. § 588b, H. L. Meyers was on Oct. 12, 1936, sentenced to a term of twenty-five years in the penitentiary; to serve which he is now confined in Alcatraz Prison. On Feb. 6, 1940, a motion in the case was heard, the purport of which was that the indictment to which the plea of guilty was made did nоt set forth the aggravated offense defined in 12 U.S.C.A. § 588b(b), the limit of punishment for which is twenty-five years’ ‍​​​​‌‌​‌​​‌‌​​‌‌‌‌‌‌‌​‌​‌​‌​​​‌​​​‌‌​​‌‌​​‌‌‌​‌‌‍imprisonment, but only the simple offense defined in § 588b(a) the limit of punishment for which is twenty years; so that the sentence as imposed is void. The district court by a judgment filed Feb. 9, 1940, held that it had jurisdiction to resentence if the former sentence was void, and entertained the motion, but held the former sеntence not in excess of the law and valid, and denied the motion. Meyers, apparently having appeared only by brief in the hearing of his motion, was notified at Alcatraz of the decision on Feb. 16, 1940. His notice of appeal was filed in the trial court February 23, 1940.

In behalf of the United States there is filed a motion to dismiss the appeal because not filed within five days from the entry of the judgment appealed from. The judgment denying the motion is final in its nature, and not being appealable to the Supreme Court, this court has jurisdiction of an appeal therefrom. 28 U.S.C.A. § 225. The rules of practice after plea or verdict in criminal cases promulgated by the Supreme Court cannot ‍​​​​‌‌​‌​​‌‌​​‌‌‌‌‌‌‌​‌​‌​‌​​​‌​​​‌‌​​‌‌​​‌‌‌​‌‌‍destroy or restrict the right оf appeal but may prescribe the time for taking the appeal, 28 U.S.C.A. § 723a. This court has not jurisdiction over an appeal not taken in the time fixed.

;
;
. Rule III, 28 U.S.C.A. following section 723a, relates to appeals and requires that appeal shall be taken within five days “after entry of judgment of conviction“, except that where a motion for new trial is timely made the appeal may be taken within five days after entry of the order denying the motion. There has been no motion for a new trial, so the latter provision does not apply. The judgment of conviction was entered four years before the judgment appealed from was ever made, and the period measured by five days from the entry of the judgmеnt of conviction cannot apply. We are of opinion that the time for taking this appeal is not limited by any provision of Rule III, and that the time limit applicable befоre the rule was made still obtains. Under it the appeal is in time. The promptness in executing the criminal law sought by the rule is of no importance here, because the appellant is already imprisoned. The motion to dismiss is denied.

The indictment alleges that Meyers “did then and there wilfully, knowingly, unlawfully and feloniously, by the use of a dangerous weapon, to-wit a pistol, same being a firearm, by putting C. V. Jones, officer of the said bank as aforesaid, in fear for his life * * * attempt to take certain property, etc.” Now 12 U.S.C.A. 588b(a) provides that “Whoevеr, by force and violence, or by putting in fear, feloniously takes, or feloniously attempts to take, from the person,” etc., shall be imprisoned not exceeding twenty years. Thе indictment clearly charges an offense under the section quoted. Section 588b(b) provides: “Whoever, in committing * * * any offense defined in subsection (a) * * * assaults any person, or puts in jeopardy the life of any person by the ‍​​​​‌‌​‌​​‌‌​​‌‌‌‌‌‌‌​‌​‌​‌​​​‌​​​‌‌​​‌‌​​‌‌‌​‌‌‍use of a dangerous weapon” shall be imprisoned not exceeding twenty-five years. The indictment mentions the use of a dangerous weapon, but does not say that any assault was made with it, or that anyone‘s life was put in jeopardy. The pistol may have been only exhibited and not pointed, it may indeed not hаve been loaded, for only putting in fear is alleged and not actual jeopardy or danger to the life of Jones. An offense under Section 588b(b) is not alleged. The facts constituting such aggrаvation of a crime as will increase the statutory punishment must be plainly charged or they are not confessed by a plea or established by a verdict of guilty.

. Sentence could not be imposed under Section 588b(b). The prisoner оught to be brought before the court for a resentence.
.

The judgment is reversed and the cause is remanded with direction that further proceedings be had in accordance with this opinion.

On Motion for Rehearing.

PER CURIAM.

On motion for rehearing we are referred to the cases of

,
, and
, to show that the display of firearms to put one in fear constitutes ‍​​​​‌‌​‌​​‌‌​​‌‌‌‌‌‌‌​‌​‌​‌​​​‌​​​‌‌​​‌‌​​‌‌‌​‌‌‍jeopardy, of life. These cases arose under other statutes, including R.S. §§ 5472 and 5473, repealed and substituted by Criminal Code § 197, 18 U.S.C.A. § 320. They also related tо the sufficiency of the evidence and to charges thereon rather than to the allegations necessary to be made in the indictment. Without discussing the correctness of thеse decisions, we may call attention to a great difference in the statutes. Those there considered did not expressly mention “putting in fear” as a form of the unaggravated offense, as does 12 U.S.C.A. § 588b(a). We continue to think there is a difference between “putting one in fear” with a pistol under Section 588b(a), and “putting his life in jeopardy by the use” of it under Section 588b(b).

Motion denied.