Opinion
No. 12693.
June 29, 1949.
Appeal from the United States District Court for the Northern District of Alabama; Clarence Mullins, Judge.
Elmer Bentley Pickens was convicted for violation of the Federal Bank Robbery Statute, and from the judgment, 83 F. Supp. 257, he appeals.
Judgment affirmed.
George D. Patterson, Birmingham, Ala., for appellant.
John D. Hill, U.S. Atty., Birmingham, Ala., R. Macey Taylor, Asst. U.S. Atty., Birmingham, Ala., for appellee.
Before HUTCHESON, HOLMES and WALLER, Circuit Judges.
Under Title 12, Sec. 588c [now 18 U.S.C.A. § 2113], U.S.C.A. [Bank Robbery Statute], the death penalty can be imposed only upon a verdict of the jury to that effect. The fact that in the trial of this case the jury did not see fit to invoke the death penalty but undertook to fix by its verdict a sentence of life imprisonment would not make void a like sentence rendered by the Court in the exercise of its own discretion. The judgment entered by the Court stated [ 83 F. Supp. 257, 258]: "* * * it is now by the Court considered, ordered and adjudged and the sentence of the court is that you Elmer Bentley Pickens [and another] * * * be in accordance with the verdict of the jury, which is hereby approved by the court, committed to the custody of the Attorney General of the United States, * * * for and during the remainder of each of your natural lives, * * *." (Emphasis added.)
The statement that the verdict of the jury "is hereby approved by the Court" is not only surplusage but is in no wise in negation of the fact that the judgment entered was also the appropriate sentence in the opinion of the Court and that such judgment was its own rather that a mere carrying into effect the verdict of the jury, for it clearly appears from the record that although the Court approved the verdict of the jury, nevertheless, the sentence imposed was "by the Court considered, ordered and adjudged."
The judgment of the Court below is affirmed.