legally adequate provocation

The appellant was convicted by a jury on two counts of an indictment charging him with bank robbery in violation of 18 U.S.C. § 2113(a) and (d). He was sentenced to twenty-five years imprisonment. Count One charged that Austin, by force and violence and by intimidation, took from the person and presence of a bank teller approximately $10,000.00. Count Two charged that in committing the offense he assaulted the teller and put her in jeopardy by the use of a dangerous weapon, to-wit, a pistol. The sole question presented on this appeal is whether the lesser offense proscribed by 18 U.S.C. § 2113(a) is included in the offense proscribed by 18 U.S.C. § 2113(d), so that a defendant may not be convicted and punished for both. The statute defines the basic robbery offense in subsection (a) and provides an enhanced penalty in subsection (d) for committing any offense defined in subsections (a), (b), and (c) by assaulting a person or putting a life in jeopardy with a dangerous weapon or device. The Government argued that the two counts state separate and distinct offenses for which the defendant may be convicted and punished. It relied on the principle that a single transaction may give rise to a violation of more than one statute as in Blockburger v. United States and Gore v. United States. The court noted that the question is one of legislative intent. The court cited Prince v. United States, where the Supreme Court held that a defendant could not be validly sentenced on both a count charging entry into a bank with intent to rob and a count charging robbery. The Government sought to distinguish Prince on the ground that the two offenses there involved were proscribed by separate subsections of the statute, while here both offenses are embraced within a single subsection, namely (d). The court rejected this distinction. The plain meaning of the language in (d) is that the use of a dangerous weapon must occur in the course of the commission of one of the offenses defined in the earlier subsections. Subsection (d) does not define a separate and distinct offense but provides for an increased penalty. This interpretation was confirmed by the legislative history of the statute. The original bank robbery statute was enacted in 1934. It contained what is now subsection (a) and a subsection (b) which is now (d). House reports from 1934 and 1935 treated the use of a dangerous weapon as an aggravation of the offense of taking by force and violence or by intimidation. The statute was amended in 1948 to its present form. The Reviser's Note stated that the section consolidates the earlier statutes without change of substance. The court concluded that Congress at no time intended to provide for cumulative penalties for the single offense of bank robbery. The judgment of the District Court is reversed and the case is remanded with directions to vacate the conviction and sentence on Count One of the indictment.