Count 1 of the indictment charged appellant with the violation of Section 88, Title 18 U.S.C.A.; counts 2 and 3 with violations of Section 588b(a) and (b), Title 12 U.S.C.A.; and count 4 with violation, of Section 588c, Title 12 U.S.C.A.
Appellant plead guilty to all four counts» The court sentenced appellant on July 29, 1937, to 2 years’ imprisonment on count 1, 20 years on count 2, 25 years on count 3, and to life imprisonment on count 4. The terms of imprisonment on counts 1, 2 and 3 were to run consecutively but concurrently with the term of life imprisonment on count 4,
On May 24, 1943, appellant made application for amendment and correction of sentence on the ground that counts 2 and 3 charged violation of the same offense and only one sentence should have been imposed, and further that count 4 of the indictment was not valid and sufficient. The appellant has appealed from the judgment of the lower court denying the application for correction of the sentences. This Court has held that Section 588b defines one crime, aggravated or not aggravated. Only one sentence can be imposed. Wilson v. United States, 9 Cir., 145 F.2d 734; Dimenza v. Johnston, 9 Cir., 130 F.2d 465. See cases cited therein.
The appellant’s second point on appeal is that the indictment is insufficient as to count 4 because all the elements of the offense as delineated in Section 588c. are not alleged. Section 588c reads:
Ҥ 588c. Same; killing or kidnapping as incident to robbery
“Whoever, in committing any offense defined, in section 588b of this title, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be punished by imprisonment for not less than 10 years, or by death if the verdict of the jury shall so direct.”
Appellant contends that, count 4 does not use the words “or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense” and therefore is not valid. This precise question has *618not been raised before in respect to Section 588c. However, the statute says that in committing the offense described in Section 588b or in avoiding apprehension for having committed such offense or in freeing oneself from arrest for such offense, killing another or forcing another to accompany you constitutes a crime punishable as prescribed therein. The use of the word “or” clearly indicates alternate circumstances. We hold this indictment sufficient as the crime is described as “that in committing said offense the said defendants did force Oscar Hoverson to accompany them, without his consent.” We believe count 4 pleaded essential facts with sufficient certainty to apprise the appellant of what he would be required to meet and enable him to prepare his defense. It is sufficient in law and in fact. Furthermore, appellant plead guilty to the crime set forth in count 4.
The sentence under count 1 has been served. The appellant should have been sentenced for only one term of imprisonment tinder counts 2 and 3. However, the life sentence running concurrently with the other sentences, is a valid one and has not yet been served. We affirm the judgment of the lower court denying appellant’s application for correction of the sentence.