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MILANOVICH V. UNITED STATES, 365 U. S. 551 (1961)
U.S. Supreme Court
Milanovich v. United States, 365 U.S. 551 (1961)
Milanovich v. United States
Argued February 20, 1961
Decided March 20, 1961
365 U.S. 551
Petitioners, husband and wife, were both convicted in a Federal District Court for stealing government property in violation of 18 U.S.C. § 641, and the wife was convicted also on a separate count for receiving and concealing part of the same property in violation of the same section. On the larceny conviction, the husband was sentenced to imprisonment for five years and the wife for ten years. In addition, the wife received a five-year concurrent sentence on the receiving count. The Court of Appeals sustained both convictions on the larceny count, but it reversed the wife's conviction on the receiving count. It set aside the wife's five-year sentence for receiving, but it let stand her ten-year sentence for larceny.
Held: the judgment as to the husband is affirmed, but the judgment as to the wife is set aside, and the cause is remanded to the District Court for a new trial. Pp. 365 U. S. 552-556.
(a) The wife could not validly be convicted under 18 U.S.C. § 641 both for stealing government property and for receiving and concealing the same property. Hein v. United States, 358 U. S. 415. Pp. 553-554.
(b) The trial judge erred in not charging that the jury could convict the wife of either larceny or receiving, but not of both. Pp. 365 U. S. 554-555.
(c) Since there is no way of knowing whether a properly instructed jury would have found the wife guilty of larceny or of receiving or of neither, the mere setting aside of the shorter concurrent sentence for receiving did not suffice to cure any prejudice resulting from the judge's failure to instruct the jury properly. Pp. 365 U. S. 555-556.
275 F.2d 716 affirmed in part and set aside in part.
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