S. J. Wilburn v. United States

HUTCHESON, Circuit Judge

(concurring specially).

I concur in the opinion and the result, but I should like to add that, after read*905ing the various cases in which similar questions have been discussed, including Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435, Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405, Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199, and Wilburn v. United States, 290 F.2d 218, I am convinced that Mr. Justice Frankfurter in the Gore case, 357 U.S. at p. 393, 78 S.Ct. 1285, 2 L.Ed.2d 1405, put his finger precisely on the source of the apparent difficulties which these and similar cases have presented when he said:

“In effect, we are asked to enter the domain of penology, and more particularly that tantalizing aspect of it, the proper apportionment of punishment. * * * these are peculiarly questions of legislative policy.”