T. W. MORGAN, Warden of the United States Penitentiary at Leavenworth, Kansas, Appt., v. ALFONSO J. DEVINE, alias Ollie Devine, and Charles Pfeiffer, alias Chilli Pfeiffer.

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 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:

'Sec. 190. Whoever shall steal, purloin, or embezzle any mail bag or other property in use by or belonging to the Postoffice Department, or shall appropriate 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, or both.'

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

Whether, under these sections of the statute, two offenses 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 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.:

'If in the night a man breaks and enters a dwelling house to steal therein, and steals, he may be punished for the two offenses or one, at the election of the prosecuting power. An allegation simply of breaking, entering, and stealing states the burglary in a form which makes it single, and a conviction therefor will bar an indictment for the larceny or the burglary alone. But equally well a first count may set out a breaking and entering with intent to steal, and a second may 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, there could have been a conviction; when there could, the second cannot be maintained; when there could not, it can be.' Section 1052, p. 630.

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:

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

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:

'A criminal intent to commit larceny of property of the government is an indispensable element of each of the offenses of which the petitioner was convicted, and there can be no doubt that where one attempts to break into or breaks into a postoffice building with intent to commit larceny therein, and at the same time commits the larceny, his criminal intent is one, and it inspires his entire transaction, which is itself in reality but a single continuing criminal act.'

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, and the other receiving such compensation, in violation of the statute, but this court held that the statute was so written, and said:

'There might be an agreement to receive compensation for services to be rendered without any compensation ever being in fact made, and yet that agreement would be covered by the statute as an offense. Or, compensation 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 the sixth count, which charged an agreement to receive $2,500, was more extensive than that charged in the seventh count, which alleged the receipt of $500. But Congress intended to place its condemnation upon each distinct, separate part of every transaction coming within the mischiefs intended to be reached and remedied. Therefore an agreement to receive compensation was made an offense. So the receiving of compensation in violation of the statute, whether pursuant to a previous agreement or not, was made another and separate offense. There is, in our judgment, no escape from this interpretation consistently with the established rule that the intention of the legislature must govern 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.'

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 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.

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.

Reversed.

Mr. Justice McReynolds took no part in the consideration or decision of this case.