232 F.2d 357 | D.C. Cir. | 1956
Lead Opinion
Under an indictment containing two counts appellant was convicted of unlawful entry, a violation of § 22-1801, D. C.Code, 1951, first count, and of possession of implements of crime, namely, two
In Benton v. United States, 98 U.S.App.D.C.—, 232 F.2d 341, recently decided, we have held section 22-3601 to be unconstitutional in its application to such tools as are here involved. The conviction on the second count of the indictment, therefore, cannot be affirmed. With respect, however, to the unlawful entry count, we find no error affecting substantial rights. And since the sentence was a general one of imprisonment for 15 to 45 months, less than could have been imposed for the unlawful entry conviction alone,
It is so ordered.
. Section 22-1801 permits a sentence of imprisonment for not more than 15 years.
. For an excellent discussion of the contrary view by the highest court of a state, see State v. Kaufman, 18 N.J. 75, 112 A.2d 721. See, also, Commonwealth v. Hull, 296 Mass. 327, 5 N.E.2d 565; Robinson v. United States, 6 Cir., 30 F.2d 25. And in Laing v. United States, 145 F.2d 111, 112, the Sixth Circuit condemned “the loose imposition of general sentences upon multiple counts of an indictment.” See, also, Moss v. United States, 6 Cir., 132 F.2d 875.
Concurrence in Part
(concurring in part and dissenting in part).
I concur in the court’s affirmance of Washington’s conviction under the unlawful entry count.
For the reasons given in my dissent in Benton v. United States, 1956, 98 U.S.App.D.C.—, 232 F.2d 341, I regard as constitutional the statute under which Washington was convicted of possessing implements of crime. I must therefore dissent from the action of the majority with respect to Washington’s conviction under the burglary tools count. I would affirm under that count also.