Appeal from the District Court of the United States for the Southern District of Illinois, Northern Division; J. Leroy Adair, Judge.
Before EVANS, SPARKS and MAJOR, Circuit Judges.
Appellant argues that a proper interpretation of the grammatical and structural composition of the statute (18 U.S.C.A. § 409) necessitates the conclusion that Congress meant to impose penalties for any of three separate classes or categories of crimes. it did not, however, mean to make a separate crime of every act described in each of the several classes or categories. In support of such theory, counsel points out that each category begins with the identical word "whoever" and is set off by semi-colons, whereas the several condemned acts within the respective categories are not so stated, merely being joined with the disjunctive "or" and separated by commas.
The statute reads (we add the numerals which appellant uses to designate his categories):
"(1) Whoever shall unlawfully break the seal of any railroad car * * * or shall enter any such car with intent in either case to commit larceny therein; (2) or whoever shall steal or unlawfully take, carry away, or conceal, or by fraud or deception obtain from any railroad car, * * * with intent to convert to his own use any goods or chattels * * * , or shall buy or receive or have in his possession any such goods or chattels, knowing the same to have been stolen; (3) or whoever shall steal or shall unlawfully take, carry away, or by fraud or deception obtain with intent to convert * * * any baggage, * * * or shall break into, steal, take, carry away, or conceal any of the contents of such baggage, or shall buy, receive, or have in his possession any such baggage * * * shall in each case be fined not more than $5,000 or imprisoned not more than ten years, or both * * * ."
It is counsel's urge that the second and third counts, namely, for stealing and for receiving, are for but a single crime in that they are both covered by the one category, i.e., class (2), and therefore appellant has suffered two five year sentences for but one crime.
Appellant also stresses the phrase "in each case" as being indicative of Congressional intent to impose a sentence only upon each of the classes of acts outlineld.
A second contention, which was the one involved in the habeas corpus proceedings, is that the charge of stealing and possessing does not define two crimes because only one criminal intent was involved. In other words, in all cases where there is a stealing, there is, per se, a possessing.
Counsel stresses the fact that the bill of exceptions, which was not consulted on the prior appeal because not duly filed, disclosed that appellant was not even at the site of the crime, but a block distant, and only by virtue of a conspiracy or by proxy could he be deemed to have participated in the stealing.
Appellant also contends that there is duplication of punishment in the imposition of a sentence on the conspiracy court, for the same evidence was used to gain a conviction on this count as was used to establish guilt under the first three counts.
The earnestness of counsel, the severity of the sentence, and the parolement of appellant to service in the army, have all impelled us to re-examine this statute and the decisions.
We repeat the statute, but in skeleton form. It would seem that crimes were ...