237 U.S. 632

35 S.Ct. 712

59 L.Ed. 1153

T. W. MORGAN, Warden of the United States Penitentiary atLeavenworth, Kansas, Appt.,

v.ALFONSO J. DEVINE, alias Ollie Devine, and Charles

Pfeiffer, alias Chilli Pfeiffer.

No. 685.

Submitted April 7, 1915.Decided June 1, 1915.

Assistant Attorney General Wallace for appellant.

Messrs. A. E. Dempsey, Turner W. Bell, and Robert B. Troutman forappellees.

[Argument of Counsel from pages 633-635 intentionally omitted]

Mr. Justice Day delivered the opinion of the court:

1 This case was submitted at the same time with number 736, just decided [237U. S. 625, 59 L. ed.——, 35 Sup. Ct. Rep. 710], and involves to a considerableextent the same questions. The appellees, Devine and Pfeiffer, pleaded guilty toan indictment containing two counts in the district court of the United States forthe eastern division of the southern district of Ohio, the first count being under§ 192 of the Penal Code [35 Stat. at L. 1125, chap. 321, Comp. Stat. 1913, §10,362], charging that the appellees did, on the 13th of January, 1911, in thecounty of Delaware, in the state of Ohio, unlawfully and forcibly break into andenter a building used in whole as a postoffice of the United States, with theintent then and there to commit larceny in such building and postoffice, to wit,to steal and purloin property and funds then and there in use by and belongingto the Postoffice Department of the United States. The second count was drawnunder § 190 of the Penal Code, charging that the appellees, on the same dateand at the same place, did unlawfully and knowingly steal, purloin, take, andconvey away certain property and moneys of the United States, then and there

in use by and belonging to the Postoffice Department of the United States, towit, postage stamps and postal funds, etc. One was sentenced to confinement inthe United States Penitentiary at Leavenworth, Kansas, for four years on thefirst count, and for two years on the second count of the indictment, thesentence to be cumulative, and not concurrent. The other appellee was likewisesentenced for three and onehalf years' imprisonment and a fine of $100 on thefirst count, and two years on the second count. It is admitted that the acts setforth in the second count were performed by the appellees in the postofliceunder the burglarious entry charged in the first count. Having served the largerpart of their sentences under the first count, appellees filed their petition in thedistrict court of the United States for the district of Kansas, asking for a writ ofhabeas corpus, and to be discharged from confinement at the expiration of thesentence under the first count. The district court, believing the case to becontrolled by the case of Munson v. McClaughry, 42 L.R.A.(N.S.) 302, 117 C.C. A. 180, 198 Fed. 72, decided by the circuit court of appeals for the eighthcircuit, entered an order discharging the appellees from imprisonment at theexpiration of their term of confinement under the first count of the indictment.

2 It is the contention of the appellees that protection against double jeopardy setforth in the 5th Amendment to the Constitution of the United States requiredtheir discharge, because the several things charged in the two counts were doneat the same time and as a part of the same transaction.

3 The statutes under which the indictment was found are as follows:

4 'Sec. 190. Whoever shall steal, purloin, or embezzle any mail bag or otherproperty in use by or belonging to the Postoffice Department, or shallappropriate any such property to his own or any other than its proper use . . .shall be fined not more than $200, or imprisoned not more than three years, orboth.'

5 'Sec. 192. Whoever shall forcibly break into, or attempt to break into anypostoffice . . . with intent to commit in such postoffice . . . any larceny or otherdepredation, shall be fined not more than $1,000, and imprisoned not more thanfive years.'

6 Whether, under these sections of the statute, two offenses in the sametransaction may be committed and separately charged and punished, has beenthe subject of consideration in the Federal courts, and the cases in those courtsare in direct conflict. In Halligan v. Wayne (C. C. A. 9th C.) 102 C. C. A. 410,179 Fed. 112, and Munson v. McClaughry, supra, it was held that upon

conviction on an indictment containing two counts, one charging burglary withintent to commit larceny, and the other larceny, upon a general verdict of guilty,there can be but a single sentence, and that for the burglary only; and that afterthe defendant has served a sentence for that offense he is entitled to release onhabeas corpus. The rule has been held to be otherwise in Ex parte Peters (C. C.W. D. Mo.) 2 McCrary, 403, 12 Fed. 461, and in Anderson v. Moyer (D. C. N.D. Ga.) 193 Fed. 499.

7 We think it is manifest that Congress, in the enactment of these sections,intended to describe separate and distinct offenses, for in § 190 it is made anoffense to steal any mail bag or other property belonging to the PostofficeDepartment, irrespective of whether it was necessary, in order to reach theproperty, to forcibly break and enter into a postoffice building. The offensedenounced by that section is complete when the property is stolen, if itbelonged to the Postoffice Department, however the larceny be attempted.Section 192 makes it an offense to forcibly break into or attempt to break into apostoffice, with intent to commit in such postoffice a larceny or otherdepredation. This offense is complete when the postoffice is forcibly brokeninto, with intent to steal or commit other depredation. It describes an offensedistinct and apart from the larceny or embezzlement which is defined and madepunishable under § 190. If the forcible entry into the postoffice has beenaccomplished with the intent to commit the offenses as described, or any one ofthem, the crime is complete, although the intent to steal or commit depredationin the postoffice building may have been frustrated or abandoned withoutaccomplishment. And so, under § 190, if the property is in fact stolen, it isimmaterial how the postoffice was entered, whether by force or as a matter ofright, or whether the building was entered into at all. It being within thecompetency of Congress to say what shall be offenses against the law, we thinkthe purpose was manifest in these sections to create two offenses.Notwithstanding there is a difference in the adjudicated cases upon this subject,we think the better doctrine recognizes that, although the transaction may be ina sense continuous, the offenses are separate, and each complete in itself. Thisis the result of the authorities as stated in Mr. Bishop in his new work onCriminal Law, 8th ed.:

8 'If in the night a man breaks and enters a dwelling house to steal therein, andsteals, he may be punished for the two offenses or one, at the election of theprosecuting power. An allegation simply of breaking, entering, and stealingstates the burglary in a form which makes it single, and a conviction thereforwill bar an indictment for the larceny or the burglary alone. But equally well afirst count may set out a breaking and entering with intent to steal, and a secondmay allege the larceny as a separate thing, and thereon the defendant may be

convicted and sentenced for both.' Vol. 1, § 1062, p. 638.1 'The test is whether,if what is set out in the second indictment had been proved under the first, therecould have been a conviction; when there could, the second cannot bemaintained; when there could not, it can be.' Section 1052, p. 630.

9 That the two offenses may be joined in one indictment is made plain by § 1024of the Revised Statutes of the United States, Comp. Stat. 1913, § 1690, whichprovides:

10 'When there are several charges against any person for the same act ortransaction, or for two or more acts or transactions connected together, or fortwo or more acts or transactions of the same class of crimes or offenses, whichmay be properly joined, instead of having several indictments the whole maybe joined in one indictment in separate counts; and if two or more indictmentsare found in such cases, the court may order them consolidated.'

11 The reason for the rule that but a single offense is committed and subject topunishment is stated in Munson v. McClaughry, supra, as follows:

12 'A criminal intent to commit larceny of property of the government is anindispensable element of each of the offenses of which the petitioner wasconvicted, and there can be no doubt that where one attempts to break into orbreaks into a postoffice building with intent to commit larceny therein, and atthe same time commits the larceny, his criminal intent is one, and it inspires hisentire transaction, which is itself in reality but a single continuing criminal act.'

13 But the test is not whether the criminal intent is one and the same and inspiringthe whole transaction, but whether separate acts have been committed with therequisite criminal intent and are such as are made punishable by the act ofCongress. In Burton v. United States, 202 U. S. 344, 50 L. ed. 1057, 26 Sup.Ct. Rep. 688, 6 Ann. Cas. 362, the defendant was charged in separate countswith receiving compensation in violation of the act, and also agreeing to receivecompensation in violation of the same statute. In that case the contention wasthat the defendant could not legally be indicted for two separate offenses, oneagreeing to receive compensation, and the other receiving such compensation,in violation of the statute, but this court held that the statute was so written, andsaid:

14 'There might be an agreement to receive compensation for services to berendered without any compensation ever being in fact made, and yet thatagreement would be covered by the statute as an offense. Or, compensation

This view was held in the following state cases:

Wilson v. State, 24 Conn. 57; Dodd v. State, 33 Ark. 517; Speers v. Com. 17Gratt. 570; State v. Hackett, 47 Minn. 425, 28 Am. St. Rep. 380, 50 N. W. 472;

might be received for the forbidden services without any previous agreement,and yet the statute would be violated. In this case, the subject-matter of thesixth count, which charged an agreement to receive $2,500, was more extensivethan that charged in the seventh count, which alleged the receipt of $500. ButCongress intended to place its condemnation upon each distinct, separate partof every transaction coming within the mischiefs intended to be reached andremedied. Therefore an agreement to receive compensation was made anoffense. So the receiving of compensation in violation of the statute, whetherpursuant to a previous agreement or not, was made another and separateoffense. There is, in our judgment, no escape from this interpretationconsistently with the established rule that the intention of the legislature mustgovern in the interpretation of a statute. 'It is the legislature, not the court,which is to define a crime, and ordain its punishment.' United States v.Wiltberger, 5 Wheat. 76, 95, 5 L. ed. 37, 42; Hackfeld & Co. v. United States,197 U. S. 442, 450, 49 L. ed. 826, 829, 25 Sup. Ct. Rep. 456.'

15 As to the contention of double jeopardy upon which the petition of habeascorpus is rested in this case, this court has settled that the test of identity ofoffenses is whether the same evidence is required to sustain them; if not, thenthe fact that both charges relate to and grow out of one transaction does notmake a single offense where two are defined by the statutes. Without repeatingthe discussion, we need but refer to Carter v. McClaughry, 183 U. S. 365, 46 L.ed. 236, 22 Sup. Ct. Rep. 181; Burton v. United States, 202 U. S. 344, 377, 50L. ed. 1057, 1069, 26 Sup. Ct. Rep. 688, 6 Ann. Cas. 362, and the recent caseof Gavieres v. United States, 220 U. S. 338, 55 L. ed. 489, 31 Sup. Ct. Rep.421.

16 It follows that the judgment of the District Court, discharging the appellees,must be reversed, and the case remanded to that court with instructions todismiss the petition.

17 Reversed.

18 Mr. Justice McReynolds took no part in the consideration or decision of thiscase.

1

Josslyn v. Com. 6 Met. 236; State v. Ingalls, 98 Iowa, 728, 68 N. W. 445;Gordon v. State. 71 Ala. 315; Clark v. State, 59 Tex. Crim. Rep. 246, 29 L.R.A.(N.S.) 323, 128 S. W. 131; State v. Hooker, 145 N. C. 581, 59 S. E. 866;People v. Parrow, 80 Mich. 567, 45 N. W. 514; State v. Martin, 76 Mo. 337, 4Am. Crim. Rep. 134.