198 F. 72 | 8th Cir. | 1912
This is an appeal from an order which denied the petition of Charles Munson for a writ of habeas corpus and a release from the United States Penitentiary at Leavenworth, Kan. The petitioner was indicted, convicted, and sentenced under
“Whenever, in any criminal transaction, a felonious intent is essential to render it a crime, and without proof of which no conviction can be had, two informations, founded upon the same intent, cannot be maintained.”
Judge McCrary, in his opinion in the Peters Case, said that the reasoning of Chief Justice Waite was so strong that if it were a question of first impression he would be inclined to adopt his opinion, but that he found the law very well settled to the contrary, and he cited Bishop’s Criminal Law, § 1062, Josslyn v. Commonwealth, 6 Mete. (Mass.) 236, State v. Ridley, 48 Iowa, 370, and Breese v. State, 12 Ohio St. 146, 80 Am. Dec. 340. A careful examination of these authorities discloses the fact that the}'- fail to support his statement that they settle the question in favor of his decision.
In Josslyn v. Commonwealth, the Supreme Judicial Court of Massachusetts held only:
“That where the breaking and entering and actual stealing are charged in one count, there is but one offense charged, and there can be but one penalty adjudged. But where they are averred in distinct counts, as distinct substantive offenses, not alleged to have been committed at the same time and as one continued act, if/in other respects they are such offenses as-may be joined in the saíne indictment, the defendant may be convicted on both' and a judgment rendered founded on both.”
“To make a burglary thus double and punish it twice, first as burglary and secondly as larceny, hardly accords with the humane policy of our law.”
It will be noticed that the decision in Josslyn’s Case was that the burglary and larceny xnig'ht be pleaded as separate offenses, where they were “not alleged to have been committed at the same time and as one continued act,” which was in effect to hold that, if they were pleaded or proved to have been “committed at the -same time and as one continued act,” they eould not be punished as separable offenses. And that was, at the time Judge McCrary rendered his opinion, and ever since has been, the established! rule in Massachusetts. In Kite v. Commonwealth, decided in 1846, subsequent to Josslyn’s Case, and more than 30 years before the decision in Peters Case, 11 Mete. (Mass.) 581, at 583, the Supreme Judicial Court of Massachusetts held that:
“If the larceny charged in the second count appears, in proof, to have been committed, at the time of the breaking and entering, then it is merged, and the conviction is properly for burglary, and the sentence must be accordingly.”
Judge McCrary evidently overlooked the clear distinction that had been made by these Massachusetts decisions between the offenses of burglary and larceny when they were distinct and separate in time, place, and act, and burglary and larceny that were parts of the same continuous criminal act, and upon this mistake was founded the decision which he rendered against his own better judgment in Ex parte Peters.
The opinions in the other cases, Breese v. State, 12 Ohio St. 146, 80 Am. Dec. 340, and State v. Ridley, 48 Iowa, 370, which Judge McCrary cited in the Peters Case, did not treat or rule the question there and here at issue, and the fact was that the opinion of the courts of Massachusetts was contrary to that which Judge McCrary announced and in accord with his own good judgment.
Turning, now, to the other decisions in the courts of the United States, the question here under consideration was not presented or considered in United States v. Williams (D. C.) 57 Fed. 201. In United States v. Yennie (D. C.) 74 Fed. 221, the breaking into the building with intent to commit larceny and the larceny of the postage stamps were charged in the same count of the indictment, and the court held that, although they were separate offenses, the count was good. The question whether or nol the defendants could be punished for both offenses, when they proved to be parts of a single continuing act inspired by a single criminal intent, was neither considered nor determined. This is also true of the decision in Sorenson v. United States, 168 Fed. 785, 94 C. C. A. 181, and the result is that, aside from the opinion under review, no authority in the federal courts, in support of the proposition of counsel for the government, except the opinion of Judge McCrary in the Peters Case, rendered against his
The authorities cited by counsel for the government from the state courts, to the effect that burglary and larceny committed as parts of the same transaction are separate offenses and may be separately punished, have been carefully' read. They are not, however, very persuasive, because some of them are founded on the Peters Case, some on special statutes of the states in which they were respectively rendered, and some on.the argument that burglary and larceny committed! as parts of a continuous act may be inspired by different criminal intents, the burglary by the intent to commit some felony other than larceny, such as rape, arson, or murder, so that the intent to commit larceny may not arise until after the breaking and entering with an intent to commit some other felony have been completed (People v. Devlin, 143 Cal. 128, 129, 76 Pac. 900); an argument which is idle in the case in hand, because the same single intent to commit larceny is an indispensable element of each of the offenses of which the petitioner was convicted in this case under sections 5478, 5456, and 5475, Revised Statutes.
On the other hand, it seems to be the established rule that where burglary with an intent to steal and stealing at the same time are charged! in a single count, and there is a general verdict of guilty, the larceny is merged in the burglary and a sentence for the burglary only can be inflicted, although separate penalties.are prescribed by the statutes for burglary and larceny. State v. McClung, 35 W. Va. 280, 284, 13 S. E. 654; Commonwealth v. Hope, 22 Pick. (Mass.) 1; Kite v. Commonwealth, 11 Metc. (Mass.) 581; Roberts v. State, 55 Miss. 421, 424.
The highest judicial tribunals of Massachusetts, Kentucky, Pennsylvania, and Georgia have decided that burglary with intent to commit larceny and larceny at the same time and as a part of the same transaction may not be lawfully punished as separate offenses, because they are parts of a single continuous act inspired by a single criminal intent. Kite v. Commonwealth, 11 Metc. (Mass.) 581, 583; Triplett v. Commonwealth, 84 Ky. 193, 1 S. W. 84, 85; Yarborough v. State, 86 Ga. 396, 12 S. E. 650; Commonwealth v. Birdsall, 69 Pa. 482, 485, 8 Am. Rep. 283.
The United! States Circuit Court of Appeals for the Ninth Circuit, after a thoughtful review of the authorities, has decided that, where, one is indicted in separate counts and convicted of burglary of a post office with intent to commit a larceny under section 5478, and of larceny at the same time as a part of the same transaction under section 5456 or 5475, he-can be lawfully punished for the burglary only. Halligan v. Wayne, 179 Fed. 112, 102 C. C. A. 410. And because in such a case the burglary and larceny are parts of a single continuous act, inspired by the same single criminal intent, provable by the same evidence, because the arbitrary subdivision of such a single criminal act, inspired by the same criminal intent, into numerous offenses, is unauthorized and oppressive, because, after conviction of such a burglary, the subsequent trial for such a larceny in reality puts the
The result is that the power of the United States District Court to inflict punishment upon the petitioner was exhausted when it had sentenced him for the burglary with intent to commit the larceny, and its sentence for the larceny was in excess of its jurisdiction and therefore void.
The order denying his petition for a writ of habeas corpus and for his release from the penitentiary must therefore be reversed, and the case must be remanded to the court below, with instructions to release the petitioner.