[237 U.S. 632, 633] Assistant Attorney General Wallace for appellant.
Messrs. A. E. Dempsey, Turner W. Bell, and Robert B. Troutman for appellees.
Mr. Justice Day delivered the opinion of the court:
This case was submitted at the same time with number 736, just decided [ 237 U.S. 625 , 59 L. ed.--, 35 Sup. Ct. Rep. 710], and involves to a considerable extent the same questions. The appellees, Devine and Pfeiffer, pleaded guilty to an indictment containing two counts in the district court of the United States for the 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 the county of Delaware, in the state of Ohio, unlawfully and forcibly break into and enter a building used in whole as a postoffice of the United States, with the intent 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 belonging to the Postoffice Department of the United States. The second count was drawn under 190 of the Penal Code, charging that the appellees, on the same date and at the same place, did unlawfully and knowingly steal, purloin, take, and convey 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, to wit, postage stamps and postal funds, etc. One was sentenced to confinement in the United States Penitentiary at Leavenworth, Kansas, for four years on the first count, and for two years on the second count of the indictment, the sentence to be cumulative, and not concurrent. The other appellee was likewise sentenced for three and onehalf [237 U.S. 632, 637] years' imprisonment and a fine of $100 on the first count, and two years on the second count. It is admitted that the acts set forth in the second count were performed by the appellees in the postoflice under the burglarious entry charged in the first count. Having served the larger part of their sentences under the first count, appellees filed their petition in the district court of the United States for the district of Kansas, asking for a writ of habeas corpus, and to be discharged from confinement at the expiration of the sentence under the first count. The district court, believing the case to be controlled 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 eighth circuit, entered an order discharging the appellees from imprisonment at the expiration of their term of confinement under the first count of the indictment.
It is the contention of the appellees that protection against double jeopardy set forth in the 5th Amendment to the Constitution of the United States required their discharge, because the several things charged in the two counts were done at the same time and as a part of the same transaction.
The statutes under which the indictment was found are as follows:
Whether, under these sections of the statute, two offenses [237 U.S. 632, 638] in the same transaction may be committed and separately charged and punished, has been the subject of consideration in the Federal courts, and the cases in those courts are 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 with intent 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 after the defendant has served a sentence for that offense he is entitled to release on habeas 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.
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 an offense to steal any mail bag or other property belonging to the Postoffice Department, irrespective of whether it was necessary, in order to reach the property, to forcibly break and enter into a postoffice building. The offense denounced by that section is complete when the property is stolen, if it belonged to the Postoffice Department, however the larceny be attempted. Section 192 makes it an offense to forcibly break into or attempt to break into a postoffice, with intent to commit in such postoffice a larceny or other depredation. This offense is complete when the postoffice is forcibly broken into, with intent to steal or commit other depredation. It describes an offense distinct and apart from the larceny or embezzlement which is defined and made punishable under 190. If the forcible entry into the postoffice has been accomplished with the intent to commit the offenses as described, or any one of them, the crime is complete, although the intent to steal or [237 U.S. 632, 639] commit depredation in the postoffice building may have been frustrated or abandoned without accomplishment. And so, under 190, if the property is in fact stolen, it is immaterial how the postoffice was entered, whether by force or as a matter of right, or whether the building was entered into at all. It being within the competency of Congress to say what shall be offenses against the law, we think the 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 in a sense continuous, the offenses are separate, and each complete in itself. This is the result of the authorities as stated in Mr. Bishop in his new work on Criminal Law, 8th ed.:
That the two offenses may be joined in one indictment is made plain by 1024 of the Revised Statutes of the United States, Comp. Stat. 1913, 1690, which provides:
The reason for the rule that but a single offense is committed and subject to punishment is stated in Munson v. McClaughry, supra, as follows:
But the test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent and are such as are made punishable by the act of Congress. 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 counts with receiving compensation in violation of the act, and also agreeing to receive compensation in violation of the same statute. In that case the contention was that the defendant could not legally be indicted for two separate offenses, one agreeing to receive compensation, [237 U.S. 632, 641] and the other receiving such compensation, in violation of the statute, but this court held that the statute was so written, and said:
As to the contention of double jeopardy upon which the petition of habeas corpus is rested in this case, this court has settled that the test of identity of offenses is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offense where two are defined by the statutes. Without repeating the 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 , 50 S. L. ed. 1057, 1069, 26 Sup. Ct. Rep. 688, 6 Ann. Cas. 362, and the recent case of Gavieres v. United States, 220 U.S. 338 , 55 L. ed. 489, 31 Sup. Ct. Rep. 421. [237 U.S. 632, 642] It follows that the judgment of the District Court, discharging the appellees, must be reversed, and the case remanded to that court with instructions to dismiss the petition.
Mr. Justice McReynolds took no part in the consideration or decision of this case.
[ Footnote 1 ] This view was held in the following state cases:
Wilson v. State, 24 Conn. 57; Dodd v. State, 33 Ark. 517; Speers v. Com. 17 Gratt. 570; State v. Hackett, 47 Minn. 425, 28 Am. St. Rep. 380, 50 N. W. 472; 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, 4 Am. Crim. Rep. 134.