Before BIGGS, Chief Judge, and STALEY and FORMAN, Circuit Judges.
Joseph A. Roach is here appealing from his conviction in the United States District Court for the Eastern District of Pennsylvania*fn1 on a four count indictment to which he had pleaded not guilty to each count. Count I charged him with entering a federally insured saving and loan association with intent to commit larceny in violation of 18 U.S.C. § 2113 (a).*fn2 Count II charged him with taking, with intent to steal, currency in the custody of that savings and loan association in violation of 18 U.S.C. § 2113(b).*fn3 Count III charged him with possession and concealment of a sum of money knowing it to have been "taken" from that savings and loan association, in violation of 18 U.S.C. § 2113(c).*fn4 Count IV charged him with putting in jeopardy the lives of two tellers in the savings and loan association by the use of a gun, while committing the offenses charged in Counts I and II, in violation of 18 U.S.C. § 2113(d).*fn5
The evidence adduced at the trial disclosed that on October 18, 1962, at about noon, a masked man entered the office of the East Girard Savings and Loan Association, at 7917 Ogontz Avenue, Philadelphia, Pennsylvania, the deposits of which were at the time insured by the Federal Savings and Loan Insurance Corporation whereby it was a "savings and loan association" as defined in 18 U.S.C. § 2113(g). He approached the counter and pointing a gun at Mrs. Rose Familant, a teller, told her to lie down and he would not hurt her. He called the manager, John K. Potter, out of an adjoining room and directed him to lie down on the floor near Mrs. Familant. The intruder then helped himself to cash from the counter cash drawers. He scooped the money into a paper bag he had brought with him and made his getaway. After he left, a check of the cash disclosed that the sum of $8,241 had been taken.
Neither of the Association's employees were able to make a positive identification of the appellant at his trial.
As a means of identifying currency in the event of a holdup the Association had taken the precaution to list the serial numbers of certain bills in the tellers' cash drawers. Over eighty of such bills were among those taken. Tracing them led the authorities to the appellant in whose possession five were found, 13 others were shown to have been transferred by him to a Western Union office and three others were located at a post office in two envelopes which he had addressed to himself. He was apprehended some four days after the robbery. The Government offered other circumstantial evidence designed to inculpate him in the crime.
During the trial he took the stand in his defense and offered evidence to show that he was elsewhere than at the scene of the robbery on October 18, 1962. He explained the possession of the marked bills with a statement that he had won them at a race track.
The jury convicted him on all four counts of the indictment. Motions for acquittal were made and denied at the conclusion of the Government's and defendant's cases. A motion for a new trial was also denied.
The trial judge sentenced the appellant to ten, five, five and ten years respectively on Counts I through IV, to run consecutively, making an aggregate sentence of thirty years.
Three of the errors that the appellant urges are conceded by the Government, namely:
(1) that the pyramiding of the sentences is invalid under Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1957) and Heflin v. United States, 358 U.S. 415, 79 S. Ct. 451, 3 L. Ed. 2d 407 (1959);
(2) that Count III of the indictment did not charge appellant with a crime. It merely alleged that he knowingly and unlawfully possessed and concealed currency of the United States knowing the same to have been taken from the East Girard Savings and Loan Association in violation of 18 U.S.C. § 2113(c).*fn6 It fails to specify how the currency was "taken." One of the essential elements of § 2113(c) - knowledge that the property was "taken * * * in violation of subsection (b)*fn6a of [§ 2113]", i.e., stolen - is omitted. The omission is fatal;
(3) that the District Court erred in instructing the jury as follows:
"In Count Four of the indictment in this case the Government charges whoever in committing or attempting to commit, any of the offenses charged in Count One or Count Two or Count Three, as heretofore outlined to you, assaults any person or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be guilty of an ...