Potter Stewart

“ Today's decision reflects the common-law doctrine of merger and the consequences of such merger on the requirements of criminal procedure-specifically, what separate counts may be laid in an indictment and the duty of a trial judge in charging the jury the kind of a verdict they may return to an indictment of multiple counts.
It is hornbook law that a thief cannot be charged with committing two offenses-that is, stealing and receiving the goods he has stolen. ”

“ She now stands, after the action of the Court of Appeals, sentenced only on the aiding and abetting count. Each count carried the same possible penalty, and, even if the case had been submitted to the jury as is now required, it seems rather unreal for us to consider as anything more than so remotely possible as to be highly improbable, that in sentencing this petitioner on the single count the trial judge, who would nonetheless have heard all the evidence on both counts, would be more likely to impose a lesser sentence than the 10 years already given. ”

“ Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.↑ In Bell, the defendant pleaded guilty to an indictment under the Mann Act, 18 U.S.C.A. § 2421, which charged him in two counts with transporting two women, respectively, for immoral purposes on one trip. This Court held that Congress did not intend to make 'simultaneous transportation of more than one woman in violation of the Mann Act liable to cumulative punishment for each woman so transported.' 349 U.S., at pages 82-83, 75 S.Ct. ”

“ The argument is that although the evidence was sufficient to support a conviction for either larceny or reciving, [5] the judge should have instructed the jury that a guilty verdict could be returned upon either count but not both. It is urged that since it is now impossible to say what verdict would have been returned by a jury so instructed, and thus impossible to know what sentence would have been imposed, a new trial is in order. This was the view of Chief Judge Sobeloff, dissenting in the Court of Appeals. 275 F.2d at page 721.
We think that the point is well taken. ”

“ My duty here is to help fashion rules which will assure that every person charged with an offense receives a fair and impartial trial. But that obligation does not require my ferreting out of the record technical grounds for reversing a particular conviction, grounds which could not possibly have affected the jury's verdict of guilt as a factual determination. ”

“ Congress does not fix the punishment for a federal offense clearly and without ambiguity * * *.' Bell v. United States, supra, 349 U.S. at pages 83-84, 75 S.Ct. at page 622. In not one of these cases will there be found a word having to do with how crimes should be charged, how submitted to the jury, or what verdicts the jury may return. Heflin, like the rest of these cases, was concerned with the duty of the trial judge in sentencing after the jury was through with its job. ”

“ Mr. Justice FRANKFURTER, whom Mr. Justice CLARK, Mr. Justice HARLAN and Mr. Justice WHITTAKER join, dissenting.
This is a prosecution brought under 18 U.S.C. § 641, 18 U.S.C.A. § 641, [6] upon an indictment containing several counts. One charged the defendant Virginia Milanovich, petitioner herein, with the theft of government property; another charged her with receiving the stolen property with an intent to convert it to her own use. Both counts were allowed to go to the jury which explicitly found the defendant guilty on each of the two counts. ”