Harry William Theriault, Appellant, v. United States of America, Appellee, 434 F.2d 212 (5th Cir. 1970)

This appeal is from a conviction for violating section 751, Title 18, United States Code¹  as charged in the indictment²  and a sentence to imprisonment for three years, to run consecutively to two earlier sentences.

The evidence failed to sustain that part of the indictment emphasized in footnote 2, supra. All three documents — the sworn complaint, the warrant of arrest, and the Commissioner's final commitment, by virtue of which the defendant was held in custody at the time of his escape — were for violation of 18 U.S.C. § 641,³  and each of the three described the property charged to have been stolen as "31 United States Postal Money Orders, things of value of the United States" with no further allegation of their value. Nonetheless, the district judge held as a matter of law that at the time of his escape the defendant was in custody on a charge of felony. We do not agree. For the offense proscribed by 18 U.S.C. § 641 to amount to a felony, there must be both charge and proof that the value of the property stolen, etc., exceeds the sum of $100. See Cartwright v. United States, 5 Cir. 1944, 146 F.2d 133, 135; United States v. Ciongoli, 3 Cir. 1966, 358 F.2d 439, 441; Robinson v. United States, 8 Cir. 1964, 333 F.2d 323, 326; United States v. Marpes, 3 Cir. 1952, 198 F.2d 186, 189. Such failure of proof does not, however, necessitate a judgment of acquittal. There is no fatal variance between the allegation and the proof. See 2 Wright, Federal Practice and Procedure § 516.

Rule 31(c), Fed. R. Crim. P., includes a provision that "The defendant may be found guilty of an offense necessarily included in the offense charged * * *." That part of the rule is a restatement of the prior law. See Sparf and Hansen v. United States, 1895, 156 U.S. 51, 63, 15 S. Ct. 273, 39 L. Ed. 343; Berra v. United States, 8 Cir. 1956, 351 U.S. 131, 133, 134, 76 S. Ct. 685, 100 L. Ed. 1013; 2 Wright, Federal Practice and Procedure § 515.

In speaking of a similar code section in Larson v. United States, 10 Cir. 1961, 296 F.2d 80, 81, Chief Judge Murrah said:

"Rule 31(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., states that `(T)he defendant may be found guilty of an offense necessarily included in the offense charged * * *." To be `necessarily included' within the meaning of the Rule, the lesser offense must be such that it is impossible to commit the greater without having first committed the lesser. Giles v. United States (9th Cir.) 144 F.2d 860 [10 Alaska 455]; James v. United States (9th Cir.) 238 F.2d 681, 16 Alaska 513. And, `* * * where some of the elements of the crime charged themselves constitute a lesser crime * * *,' and there is evidence to support them, the defendant is entitled to an instruction thereon. Berra v. United States, 351 U.S. 131, 134, 76 S. Ct. 685, 688, 100 L. Ed. 1013.

"An essential element and, indeed, the gravamen of the offense charged under Section 661, is the theft of property. Proof of this element, regardless of the value of the thing stolen, establishes no less than the misdemeanor set forth in the statute. Subsequent proof that the thing stolen had a value in excess of $100.00 bears only upon the penalty which may be imposed. Stated differently, the crime of stealing property valued in excess of $100.00 necessarily includes, as an integral step in its commission, a theft of property. This theft, standing alone, is a lesser offense, necessarily included in the offense charged."

More directly pertinent is United States v. Ciongoli, 3 Cir. 1966, 358 F.2d 439, 440, 441, where Circuit Judge Hastie applied similar reasoning to Section 641, here involved, and commented:

"Perhaps the most striking application of the general doctrine occurs when, after conviction of the greater offense, the court is persuaded that there was no sufficient proof of the aggravating circumstance. The conviction can stand, but with a sentence appropriate for the lesser included offense. Robinson v. United States, supra [8 Cir. 1964, 333 F.2d 323]; United States v. Wilson, 4th Cir., 1960, 284 F.2d 407."

See also the two cases cited — Robinson, 333 F.2d 323, 326, and Wilson, 284 F.2d 407, 408, 409.

By a parity of reasoning, the gravamen of the offense charged against the present defendant under 18 U.S.C. § 751 is escape from custody held by virtue of process issued under the laws of the United States. Proof of such an escape, regardless of whether the process charges a felony or a misdemeanor, establishes no less than the lesser offense set forth in 18 U.S.C. § 751. Proof that the custody was on a charge of felony bears only upon the punishment which may be imposed.

The sentence is therefore vacated and the case remanded with directions to modify the judgment of conviction and resentence the defendant in accordance with this opinion.

Upon oral argument and in three briefs aggregating some seventy pages, appellant has made a number of other contentions, each of which has received our careful consideration. After a thorough study of the entire record, we find no merit in any other-issue presented for review and no occasion to further prolong this opinion.

The defendant has been ably represented in the best traditions of our profession by court-appointed counsel, Joseph M. Matranga, Esq., both in the district court and upon appeal. To the defendant's credit, he proved himself unusual after the jury had found him guilty and while he was being sentenced by paying tribute to his court-appointed attorney, thus: "He did an excellent job". Mr. Matranga has merited also the thanks of this Court.

Sentence vacated and case remanded with directions.