United States v. Jerome , 130 F.2d 514 ( 1942 )

CLARK, Circuit Judge.

These are appeals by the defendant from two judgments of conviction and imprisonment rendered against him upon successive jury verdicts based upon two separate indictments. The first indictment, based upon 12 U.S.C.A. § 588b, charged that defendant entered a national bank, a member of the Federal Reserve System, with intent to commit in such bank a felony, to wit, that of knowingly and with intent to defraud the bank uttering and publishing as true to the bank a promissory note upon which, as he knew,' there was a forged endorsement. The second, based upon 18 U. S.C.A. § 753h, charged that, while in custody of the United States marshal for the District of Vermont under a warrant for the above charge, defendant escaped from the marshal’s custody. In each case the issue is the appropriate construction of the cited federal statute.

On July 14, 1941, defendant, then a captain in the United States Army stationed at Fort Ethan Allen, Vermont, entered a national bank in Burlington for the purpose of borrowing $500. He was told that before the loan could be made he would have to procure the endorsement of another army officer of at least equal rank, and a note was prepared for his use. Later in the same day he returned waving the note in the air and saying that he had done better, for he had “a major’s signature.” The note, bearing the signatures of defendant and of Henry S. Derby, Major, 71st Field Artillery Brigade, was discounted by the bank. It has never been paid, except that a small credit in the defendant’s account at the bank was applied on it at the due date. At the trial Major Derby testified that, while he had been at Fort Ethan Allen just prior to July 14 and returned there shortly later, yet actually on that date he was at Fort Sill, Oklahoma; that he never signed the note or authorized the use of his name; that he first knew that his name appeared on the note when the bank notified him of its nonpayment on the due date; and also that while he was at the Fort his signature was readily accessible to any one there. These were the facts upon which the first conviction was based. The second conviction was based on proof that, being apprehended in Reno, Nevada, and delivered to the marshal for the District of Vermont on proper process on October 23, 1941, he escaped on November 15, 1941, from the Rutland County Jail, to which he had been committed by the marshal for safekeeping. He was later apprehended in San Antonio, Texas.

I. That part of 12 U.S.C.A. § 588b which is here involved was enacted in 1937 as an addition to the Bank-Robbery Statute of 1934. It reads: “Whoever shall enter or attempt to enter any bank, or any building used in whole or in part as a bank, with intent to commit in such bank or building, or part therof, so used, any felony or larceny, shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.” Sec. 8485 of the Public Laws of the State of Vermont, read in connection with Sec. 8484, provides that a person who utters and publishes as true a forged promissory note, knowing it to be forged, with intent to injure or defraud a person, shall be subject to a fine and to imprisonment in the state prison for not more than ten years, a penalty which under Sec. 8750 makes the offense a felony. The court below has held, in accordance with the majority view in the Tenth Circuit, Hudspeth v. Melville, 127 F.2d 373; Hudspeth v. Tornello, 128 F.2d 172, that the word “felony” in the federal statute quoted includes a state offense such as that here in question. Although some contention is made of a lack of evidence to show knowledge on defendant’s part, that claim is obviously unfounded; and if the court’s view of the statute is correct, the evidence clearly sustained the conviction.

Defendant, following the dissenting opinion in the Hudspeth cases, argues that the word “felony” does not apply to the state offense here relied on. His two positions, believed to be somewhat conflicting, as pointed out below, are that it means either a felony as “defined” in the Criminal Code or one affecting the currency or national banks. This “definition” is more accurately a classification of crimes, along the usual lines of distinction between felonies and misdemeanors, found in 18 U. S.C.A. § 541: “All offenses which may be punished by death or imprisonment for a term exceeding one year shall be deemed felonies. All other offenses shall be deemed misdemeanors.”

Prior to 1934, while it was an offense under federal law for any officer, director, agent, or employee of a national bank to embezzle or extract funds from the bank, 12 U.S.C.A. § 592, yet robbery or theft from it by others than such employees was punishable only under state laws. Since the states seemed to be increasingly unable to protect themselves against gangs of interstate bank robbers, Attorney General Cummings in 1934, as one of a series of extensive federal criminal statutes then proposed by him¹-—his so-called twelve-point program of federal crime control—recommended the legislation which was passed as the Bank-Robbery Statute. 12 U.S.C.A. §§ 588a-d. In its first section, now § 588a, this statute defined the term “bank”; by amendment of 1935, this now includes not only members of the Federal Reserve System, but all insured banks as defined in 12 U.S.C.A. § 264(c). In its second section, § 588b, as originally passed, it provided in subdivision (a) for punishment of any one who, “by force and violence, or by putting in fear, feloniously takes, or feloniously attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank.” That is, as its title discloses, it defined the offense of “robbery of bank.” The amendment of 1937 added to this subdivision the provision quoted above, as well as other provisions referred to below. Subdivision (b) defined the offense of “assault in committing or attempting to commit bank robbery.” A third section, now § 588c, applied to “killing or kidnapping as incident to robbery,” while § 588d, a fourth section, provided that “jurisdiction over any offense defined by sections 588b and 588c of this title shall not be reserved exclusively to courts of the United States.” ²

The 1937 amendment also came about through recommendation of Attorney General Cummings, who under date of March 17, 1937, wrote Speaker Bankhead the reasons for amending the Bank-Robbery Statute to “include larceny and burglary” and set forth a draft of a bill. The bill was introduced by Representative Sumners of Texas and was promptly recommended favorably by the House Judiciary Committee with a report, H. R. Rep. No. 732, 75th Cong., 1st Sess., April 30, 1937, which quoted, and agreed with, the Attorney General’s letter. One member made an objection to the possible severity of the bill, as pointed out below, 81 Cong.Rec. 4656; whereupon the Committee suggested an amendment, and the amended bill was passed by the House, June 7, 1937. 81 Cong.Rec. 5376, 5377. In the Senate the Committee on the Judiciary promptly reported accepting and quoting the House Committee’s Report, including the Attorney General’s letter, Sen.Rep.No. 1259, 75th Cong., 1st Sess.; and the amended bill was soon passed without dissenting voice and signed by the President, August 24, 1937.

The scope of the bill, as proposed by the Attorney General and as considered in the House, shows its purpose and, as we believe, clearly demonstrates that it was intended to include common-law or state felonies. The Attorney General’s letter— quoted in full at page 376 of 127 F.2d— states that “the fact that the statute is limited to robbery and does not include larceny and burglary has led to some incongruous results.” It continues with the “striking instance” of a man who was walking out of a bank with $11,000 of the bank’s funds on his person, possession of which had been gained without force during a momentary absence of a bank employee, and federal prosecution could not be had. It further states that the enclosed bill, drafted in the Department, proposed to amend the statute “so as to include within its prohibitions, the crimes of burglary and larceny of a bank covered by its provisions.”

The bill as submitted by the Attorney General contained the words “any larceny or other depredation” where the words “any felony or larceny” now appear. This obviously all-inclusive language was objected to on the floor of the House because it would put simple larceny on the same plane as robbery and breaking and entering in an attempt to commit larceny, and that “if a man should go into a bank to make a deposit and pick up a pencil and walk out with it, he would be on the same plane, according to this bill, as a man who deliberately broke in during the nighttime and committed larceny.” The objecting Congressman also pointed out that “breaking and entering is a crime in and of itself.” 81 Cong.Rec. 4656. This led to the Committee’s amendment of the bill to add “felony” before “larceny” and strike out “other depredation.” ³ So far, however, from changing the general broad scope of the bill except for this one item of eliminating the undoubted severity of punishment for minor matters, the bill throughout remained one “to amend the bank-robbery statute to include burglary and larceny,” and was finally passed with this title. 50 Stat 749, 12 U.S.C.A. § 588b.

It should be noted that if defendant’s contention is correct, one of the two crimes so stressed throughout all these proceedings, to wit, burglary, is in no manner covered by the result. We have seen no answer to this clear fact that the reiterated statement of their intent by the proponents of the measure will be partially defeated if the broad and general language of the statute is to be restrictively construed. It will then be dangerous for federal officers to seize a man while he is breaking into a bank; they must wait and see what his ultimate plans are.

Moreover, there are other considerations which point away from so narrow a construction of the legislation. Thus, the whole basis of this statute in its original and its amended form is that of building upon state or common-law offenses-—-at least robbery originally,⁴ and later larceny also, as shown by the express language of the act, irrespective of the Attorney General’s intent. Furthermore, the use of the word “larceny” is highly significant. No attempt is made here to define this term, and we must go to state and common-law authorities for its meaning. The fact that one term of a statute has such a common-law or state significance would naturally lead to the conclusion that another term used in the same phrase has a like significance.

It will not do to say that larceny has not this broad significance, but refers only to the crime of stealing or purloining property or money from a bank, which is defined in other provisions of the Act of 1937. For the choice of this ancient and honorable common-law term in preference to either a simple extension of the crimes later defined to attempts or a simple reference to any offense defined by this act points to deliberation in selection of all-inclusive terms.⁵ “Larceny” was, of course, not identical with “felony,” since it also included petty thefts. But its use here when other phrases would have been apt, if lesser and more precisely defined crimes alone were in view, is most persuasive of a legislative intent to include all state offenses.⁶ That jurisdiction over these offenses was not reserved exclusively to the federal courts points towards this same conclusion.

On the other hand, if the statute is to be given the limited effect claimed by defendant, its scope, as to felonies, is comparatively slight, and the legislators might well have confined it to robbery and larceny only, so far as its practical usefulness in protecting national banks is concerned. It is said, however, to have some coverage, particularly as it applies to “attempts” to enter with the appropriate felonious intent. But that seems more a theoretical than a practical answer. It is a usual practice, with respect to federal crimes, for the statute to include an attempt as a defined offense when that seems appropriate; one might even deduce a federal policy as to attempts against general legislation, and in favor of specific definition with reference to specific crimes. Thus, by the well-known statute of 1872, 18 U.S.C.A. § 565, a defendant may be found guilty of an attempt to commit the offense with which he is charged “if such attempt be itself a separate offense.” At any rate, the result Í3 that federal legislation on crimes is already rather complete as to attempts where they are important, and this backhanded way of reaching attempts seems quite unnecessary and rather useless as an aid to federal officers in their war on organized crime. That is, a potentially effective statute, applying to cases such as the present where federal prosecution ought to be as much available as in any case of $50 theft, would be rendered comparatively nugatory. Such a result seems even less likely to have been intended when we consider that the act was again amended in 1940 to make it a crime to “receive, possess, conceal, store, barter, sell, or dispose” of any property or money, knowing it to have been taken from a bank in violation of the earlier subdivision of the section. 54 Stat. 695, adding (c) to § 588b. The seemingly broad and all-inclusive terms of this 1940 amendment would then also turn out in fact to be sadly limited by the construction given the earlier provision.

The strongest, perhaps the only, argument against these views is that they give too wide a sweep to the statute. But, as we have seen, the proponents of the measure contemplated a definite broadening of the earlier provisions. It is urged, however, that the statute, as thus construed, might cover in all sorts of state offenses committed in a banking house, but not actually directed against the bank. It would seem, however, that this is not an objection which the legislative body would consider at all conclusive. Suppose a shooting to occur in a bank; would it not seem desirable to have this a matter of federal investigation, even if it did not immediately appear that this had some direct connection with the bank? And in practice, as distinguished from theory, the objection seems rather unreal, for a bank lobby is not the appropriate place to stage all miscellaneous crimes; and those there committed actually unconnected with the operation of the bank are not likely to be numerous. Under the circumstances a legislative draftsman might well prefer to avoid the pitfalls of specification and limitation by use of a generality of expression which, indeed, has been somewhat the feature of recent legislation on crime, particularly that sponsored by Attorney General Cummings.⁷ See, for example, the National Motor Vehicle Theft Act, 18 U.S.GA. § 408; the National Stolen Property Act, 18 U.S.C.A. § 413 et seq.; the National Cattle Theft Act, 18 U.S.C.A. §§ 419a-d; and the Fugitive Felon Act, 18 U.S.C.A. § 408e—all built on the basis of state crimes.

There are other difficulties in the more limited construction of the statute, even of determining what the more limited meaning is. As suggested above, two alternatives are offered—a profusion which perhaps itself suggests doubt of each. If the word applies to all federal felonies, the objection just discussed of wide character of offenses subject to prosecution and their lack of direct connection with the banking business is just as appropriate. Even more, some of the results would border on the ridiculous; while the misdeed here in issue, resulting in direct and substantial loss to the bank, would not be covered, yet entry with intent to violate the Mann Act or the narcotic laws would be. The so-called definition of felonies in 18 U.S.C.A. § 541 does not require such a result. The classification of the statute may be applied here as stated, and yet the offense committed by this defendant may be fully and correctly embodied in the statute. Sec. 541 does not define and exclude; it says simply what, for purpose of federal laws generally, shall be labeled a felony. If a federal crime is here stated (and § 541 does not purport to shed light on that matter), then it is clear that it is a felony under § 541 because of the nature of the punishment.⁸

If, however, we go further and attempt to limit the statutory meaning to felonies against national banks or the currency, we have an idea which well might have been accepted by the legislators but for which there seems no real basis in the language of the statute, or its background, to justify. It seems like a definition tailored to fit the cloth, after the cloth has been decided upon. Why, for example, should we not fashion it to read “federal and state felonies against national banks” and thus include this case, rather than the even more stilted “federal felonies only and only against national banks” ?

We conclude, therefore, that defendant was properly convicted of the first crime with which he was charged.

II. Little need be said of defendant’s conviction of escape from the Rutland County Jail. The applicable statute, 18 U.S.C.A. § 753h, passed in 1930 and amended in 1935, so far as here material reads: “Any person committed to the custody of the Attorney General or his authorized representative, or who is confined in any penal or correctional institution pursuant to the direction of the Attorney General, or who is in custody by virtue of any process issued under the laws of the United States by any court, judge, or commissioner, * * * who escapes * * * from such custody or institution, shall be guilty of an offense.” Defendant concedes that if—as we have found-—he was properly charged with an offense against the United States, then his escape is a violation of this statute. But even had our decision been otherwise on the first issue, this statute clearly is intended to reach any one who is held by virtue of any proper and legal process. In Aderhold v. Soileau, 5 Cir., 67 F.2d 259, it was held that the statute was violated by an escape from a reformatory by one who was serving a sentence so uncertain as to be void. It was also held that nonetheless a prisoner was not entitled to take the law into his own hands, but should be limited to other means of testing the question. We think the same rule is appropriate here, just as conviction under a statute later found to ■be unconstitutional does not justify an escape. See Kelley v. Meyers, 124 Or. 322, 263 P. 903, 56 A.L.R. 661, 669-671.

The judgments of conviction are affirmed.

1 Ann.Rep.Atty.Gen.U.S., 1933, p. 1, 1934, pp. 1, 61-64, 1935, pp. 1, 56; Proceedings Atty. Gen.’s Conf. on Crime, 1934, 302, 332; Chamberlain, Federal Criminal Statutes, 1934, 20 A.B.A.J. 501; 48 Harv.L.Rev. 489; 1 Law & Contemp. Prob. 399, 448 ; 21 Ya.L.Rev. 568, 572.

2 As this legislation was originally proposed, it also defined two other offenses: one, that of carrying away property of the bank, which may be compared with the amendment of 1940 adding § 588c, referred to below; the other, the offense of breaking into or attempting to break into any building or part thereof used as a bank with intent to commit any offense defined by that act or any felony under federal or state law. Though the Senate passed the bill, the House struck out these two provisions, desiring to limit the legislation more closely to offenses against banks. 1 Law & Contemp. Prob. 448. Both houses voted to adhere to their positions, and it took a committee of conference of the two houses to induce the Senate to yield. 78 Cong.Rec. 8132, 8778, 8855-8857. It should be noted that when the Attorney General came to renew his proposal in 1937, he made use of the same idea and, in part, of similar language, but he broadened the proposal to include “any * * * depredation.”

3 The other change in the bill is stated in note 5, infra.

4 See 1 Law & Contemp. Prob. 448; 21 Ya.L.Rev. 568, 572.

5 This is borne out by the legislative history as to this part of the 1937 Act. Originally the provision recommended by the Attorney General did not contain a statement of the penalty, but continued after the word “depredation”: “or whoever shall take or carry away, with intent to steal or purloin, any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of any bank, shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.” Construing larceny under the circumstances, particularly in view of the word “depredation,” as referring to the offense stated in the latter part of the same sentence would have been, indeed, a forced construction. The form of this statute was changed as a part of the Committee’s amendments to meet the objection of its undue severity. 81 Cong.Rec. 5376, 5377. The change consisted in adding the statement of this penalty after the word “larceny,” thus making it applicable to this part of the statute, as well as the original bank-robbery provision, and in dividing the second offense in two parts with different penalties, thus: “or whoever shall take and carry away, with intent to steal or purloin, any property or money or any other thing of value exceeding $50 belonging to, or in the care, custody, control, management, or possession of any bank, shall be fined not more than $5,000 or imprisoned not more than ten years, or both; or whoever shall take and carry away, with intent to steal or purloin, any property or money or any other thing of value not exceeding $50 belonging to, or in the care, custody, control, management, or possession of any bank, shall be fined not more than $1,000 or imprisoned not more than one year, or both.” 12 U.S.C.A. § 588b.

6 How far “stealing or purloining” is actually identical with common-law or state larceny cannot be shortly answered in view of the various fine shades of meaning in all these various terms (see 32 Am.Jur. 885 for interesting examples; and compare Van Vechten v. American Eagle Fire Ins. Co., 239 N.Y. 303, 146 N.E. 432, 38 A.L.R. 1115); perhaps defendant was guilty of an intent to “purloin” funds of the bank. Moreover, “larceny” by itself does not suggest a limitation to stealing only from a bank.

7 See note 1, supra.

8 Even if § 541 be pressed to greater significance, there is another meaning which seems preferable to that urged by defendant, namely, that the state offense must rise to the dignity of a felony as here defined before it is within the statute. Thus, if a state statute defined a felony as including one for which imprisonment of six months was provided, there might be a question whether § 541 would not control, in spite of the state statute, to exclude an offense punishable only by six months’ imprisonment.