PHILLIPS, Circuit Judge.
An indictment containing four counts was returned against Robinson and another in the United States District Court for the Western District of Oklahoma. It was numbered 13,457. The first count charged a conspiracy to violate 18 U.S.C.A. § 398 The second count charged that the defendants on November 17, 1940, transported in interstate commerce from Corpus Christi, Texas, to Oklahoma City, Oklahoma, by means of a certain motor vehicle, to wit, an automobile, Ida Pauline Blake Taylor, with the intent and for the immoral purpose that she should engage in the practice of prostitution in Oklahoma. The charges in the third and fourth counts were substantially identical with the charge in the second count, except that the third count charged the transportation of Betty Jean Hall, and the fourth count charged the transportation of Lorene Moulton.
Robinson entered pleas of guilty to the several counts of the indictment. He was sentenced to imprisonment in an institution of the penitentiary type for the period of two years from the date of delivery on the first count, and for the period of five years from the date of delivery on the second and third counts, and for the period of five years on the fourth count, the sentence on the fourth count to commence at the expiration of service of the sentences imposed on the second and third counts.
An indictment containing three counts was returned against Robinson and another in the United States District Court for the Western District of Oklahoma. It was numbered 13,528. The first count charged a conspiracy to violate 18 U.S.C.A. § 398. The second count charged that the defendants on or about October 31, 1940, transported in interstate commerce from Wichita, Kansas, to Oklahoma City, Oklahoma, by means of a certain motor vehicle, to wit, an automobile, Marie Maenza and
Robinson entered a plea of guilty to each count of the indictment in No. 13,528. He was sentenced to imprisonment in an institution of the penitentiary type for the period of two years from the date of delivery on the first count, and for the period of five years from the date of delivery on each of the second and third counts. The sentences imposed in No. 13,528 were to run concurrently with the sentences imposed on the first, second, and third counts in No. 13,457.
Robinson filed a motion to vacate the judgments and sentences and for the imposition of new sentences in both cases to run concurrently with each other, commencing on March 22, 1941, and neither to exceed five years. From a denial of the motion, Robinson has appealed.
It is well settled that conspiracy to commit a substantive offense and the substantive offense are separate and distinct crimes.
It is obvious that the several counts in No. 13,528 charged separate and distinct offenses and that such offenses were separate and distinct from those charged in No. 13,457.
The question remains whether counts two, three, and four in No. 13,457 charge separate and distinct offenses. 18 U.S.C.A. § 398 makes it an offense to transport in interstate commerce "any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose."
We think it is a fair inference that each of the women named in counts two, three, and four of No. 13,457 was transported at the same time and in the same automobile.
The test for determining whether the offenses charged in the several counts of the indictment are identical is whether the facts alleged in one, if offered in support of the others, would sustain a conviction.
It may be urged that in order to establish count two in No. 13,457, it was necessary to prove the transportation of the particular woman named therein and that she was transported for the purpose of prostitution, facts not required to be proven in order to establish either of the other two counts; that the same may be said with respect to counts three and four; and, hence, that each count required proof of facts which the others did not.
The same transaction may constitute separate and distinct crimes where it is susceptible of separation into parts, each of which in itself constitutes a completed offense.
And, by the weight of authority, where the same act or stroke results in the death of two persons, acquittal or conviction of the murder of one bars a subsequent prosecution for the killing of the other, because the killing is but one crime and cannot be divided.
We are of the opinion that the transportation here was a single, continuous act and constituted but one offense.
It follows that counts two, three, and four of the indictment in No. 13,457 constituted but one offense, and the maximum sentence which could have been lawfully imposed under No. 13,457 was seven years, and the maximum sentence which could have been lawfully imposed under No. 13,528 was twelve years.
The order is reversed and the cause is remanded with instructions to vacate the sentences and impose new sentences within the limitations above indicated.
"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."
Cf. Mitchell v. United States, 10 Cir., 142 F.2d 480.