(concurring) :
I concur in the judgment, since I agree that it is possible that a combination at one scene of a housebreaking, with intent to commit larceny, and a robbery, may reflect sufficiently separate criminal purposes to permit consecutive punishment. While they may also, I think, be so integrated as to preclude consecutive punishment, that objection is one that should ordinarily be put forward when sentence is imposed, or timely in a motion to reduce the sentence. In any event, as will be indicated, I do not believe that appellant’s pleading asserted the factual predicate necessary to sustain the conclusion that the “sentence was in excess of the maximum authorized by law.”
A new approach, such as that suggested by amicus curiae,1 is left by the court to future consideration, and that seems right to me. In exploring approaches and pondering consequences, we may be aided by the analyses generated by the tensions of the adversary system, and, if they are available, by reflections of a sentencing judge whose attention has been directed to the elements of the approach advanced for consideration.
*436Meanwhile I believe that it usually avails little to seek out specific legislative intent as to the particular offenses. Occasionally an ascertainable legislative objective concerning pyramiding of penalties may be discernible where Congress is addressing itself to a specific type of anti-social conduct. The Supreme Court has accordingly gleaned from the legislature’s successive efforts to tighten the screw in narcotics offenses an intent to pyramid punishments,2 and contrariwise in the laws punishing national bank robberies it has found that the alternative sections broaden the net available for catching up with criminal activity without cumulating punishment for a single episode.3 But for the most part there is no ascertainable legislative intent on cumulation of punishment in relation to any particular offense or group of offenses even when the prohibiting statute is one passed by a national legislature in the exercise of its delegated powers. Legislative intent is even less ascertainable when the Congressional enactment does not relate to a specific crime, or even reflect the narrowing to a sphere of delegated powers, but is part of a code embracing the entire span of criminal activity, a general overhaul undertaken by Congress as a super-territorial legislature, acting in the same broad range as the various state and territorial legislatures.
In the absence of other, specific legislative intention on the side of either lenity or harshness, we can only invoke a generalized legislative intent. This is more likely presumed than real, and embodies a large standard of reasonableness and fairness to offenders and society alike. The standard that best conforms to my estimate of a generalized legislative intention is this: A defendant guilty of a serious crime is subject to judgment of imprisonment. The sentencing judge is given latitude so that a heavier punishment will be appropriate for a crime that is aggravated in its particular facts. When the same act can be classified as different crimes, he may be punished with the most onerous penalty provided for the most extreme crime for which he was charged. But he is not to be given two or more consecutive punishments for what is essentially a single criminal episode — say a robbery, committed of course with intent to rob — merely because the law would also have punished him if he had stopped or been apprehended before completing the robbery, on the ground that his acts and intent constitute either an attempt to commit robbery or a substantive crime which is made punishable because it is a preliminary step taken with that ultimate intent.4
This standard is essentially similar to that announced in the early 1900’s, shortly after the adoption of the District of Columbia Code, by competent circuit courts of appeals.5 Reference is particularly made to the reflective analysis in Judge Sanborn’s opinion in Munson v. McClaughry, for his review of the division among the state courts and his adoption of what he considers to be the better-reasoned rule (198 F. at 74):6
[W]here one attempts to break into or breaks into a post office building *437with intent to commit larceny therein, and at the same time commits the larceny, his criminal intent is one, and it inspires his entire transaction, which is itself in reality but a single continuing criminal act. It seems to be unauthorized, inhumane, and unreasonable to divide such a single intent and such a criminal act into two or more separate offenses, and to inflict separate punishments upon the various steps in the act or transaction, such as one for breaking, or for the attempt to break with the criminal intent, and another for a larceny with the same intent, or such as one for the attempt to break, a second for the breaking, a third for the entering, a fourth for the taking of stamps, a fifth for the taking of other property, a sixth for the conversion of the property, and a seventh for carrying it away, all with the same single criminal intent. And there is evidently no limit to the number of offenses into which a single criminal transaction inspired by a single criminal intent may be divided, if this rule of divison and punishment is once firmly established.
Similarily if a defendant breaks into a house at night for the purpose of relieving the be jeweled guests at a dinner party of material encumbrances, the robbery is indeed a heinous offense that should be severely punished. There is not merely a robbery, but a robbery aggravated by housebreaking. But in my view the defendant is not subject to consecutive punishment on the theory that there are consecutive crimes even though it is the same intention — intention to commit the felony of robbery— which makes a felony of his preliminary housebreaking as well as of the robbery that completes the sequence of the criminal episode.
If at the scene of the crime the defendant can be said to have realized that he has come to a fork in the road, and nevertheless decides to invade a different interest, then his successive intentions make him subject to cumula*438tive punishment, and he must be treated as accepting that risk, whether he in fact knows of it or not.7 Under a general rule of lenity an accused merits the benefit of any reasonable doubt as to legislative intent, but where a man commits a crime with intent, and then expands or modifies his purpose and invades another interest, I see no reasonable basis for inferring a general legislative intent that the change means only a second crime without even a possibility of a second punishment.
My difficulty with general references to disincentives and multiple societal interests is that they may tend to revive the discarded “same evidence” rule formerly used for this problem,8 and to focus on broad and perhaps abstract considerations rather than the purpose that animated the particular defendant and helps define his criminality. I thus fear that they are a distraction from the main problem of the defendant’s intention, without genuine compensation in tracing an ascertainable legislative intention.
Appraisal of a defendant’s criminal intention (s) may present problems of fact.9 Indeed if a defendant pleads guilty to more than one crime — not the usual situation — he might conceivably desire affirmatively to claim a worse rather than a milder intent at the start of his offense in order to show that there was but one intent and he therefore should not be subject to consecutive punishment.10 But when there is need our law has traditions and mechanisms for coping with even difficult factual questions.
Theoretical difficulties in making the fact determinations that I think requisite are softened by such considerations as these: First, resolution of the fact questions are for the judge. The jury may bring in a verdict of two crimes whether or not there may be consecutive punishments. Second, since the judge in fixing sentence makes an evaluation of the extent and nature of the defendant’s criminality, he properly takes into account an appraisal of intention in the particular case which may be more so*439phisticated than (but not inconsistent with) the jury’s verdict. If the judge thinks there is a reasonable doubt wheth-' er there was more than one underlying criminal intent, then the case would seem to call for concurrent sentences. It is hard to believe that the máximums authorized for serious crimes — increased by 50% in the case of recidivists11 — are not enough to accomplish essential purposes of punishment, whether deterrence, reformation, or preventive banishment from society. Concurrent sentences have the additional advantage of obviating consequences of any legal error at the trial pertaining to one but not both judgments.
I think a rule that focuses on changes in the extent and direction of the defendant’s criminal intention provides a basis for permitting cumulative punishment that is related to mens rea, and that this is sounder than a generalized approach that two or more consecutive punishments are proper for a single episode because criminality of the activity is established by more than one section of the code.
. Amicus curiae recommended that this court remand for resentencing in accordance with new criteria which would, inter alia, condition consecutive punishments on a prerequisite finding that a sentence in excess of the maximum available for the most serious offense is necessary to achieve recognized sentencing goals.
. Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958).
. Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957).
. Of course if his housebreaking had a double objective and he, say, both raped and robbed the resident he could plainly be subject to consecutive punishment. If he completed the rape, and then fled before consummating the robbery, could he be sentenced consecutively for rape and for housebreaking with intent to commit robbery? My tentative view is yes, but it is unnecessary to ponder all possible permutations and refinements which will remain for resolution no matter what basic approach is used.
. Halligan v. Wayne, 179 F. 112 (9th Cir. 1910); Munson v. McClaughry, 198 F. 72 (8th Cir. 1912).
. In concluding that Judge Sanborn’s opinion sets forth the essence of the sound rule — subject to refinements and improvements (see note 1, above) — I am aware that his reasoning was rejected in Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 *437L.Ed. 1151 (1915) and Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (1915). Those opinions applied the “same evidence” rule, “that the test of identity of offenses is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offense where two are defined by the statutes.” (237 U.S. at 641, 35 S.Ct. at 715.)
Judge Sanborn’s approach merits reconsideration at this time, however, because the same evidence rule, though followed in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), has been undercut by subsequent decisions. Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957); Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958); Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959). See also Ingram v. United States, 122 U.S.App.D.C. 334, 353 F.2d 872 (1965); Davenport v. United States, 122 U.S.App.D.C. 344, 353 F.2d 882 (1965). See generally Merker, Multiple Punishment in the Federal Courts: Consecutive Sentences Based on Overlapping Statutes Covering a Single Criminal Transaction, 4 Am.Crim.L.Q. 206 (1966). Moreover the two Supreme Court opinions upholding consecutive punishments subsequent to Bell do not rely on the same evidence rule but on a construction of Congressional intent from other indicia. Gore v. United States, supra, note 2; Callanan v. United States, 364 U.S. 587, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961).
The “same evidence” rule has vitality for the purpose for which it was originally advanced, see Morey v. Commonwealth, 108 Mass. (12 Browne) 433 (1871) — to protect the state against charges of variance between pleading and proof. The prosecution may charge in various ways and in many counts what is essentially a continuing offense motivated by a single intent, and thereby assure that the criminal will be punished even though the prosecution cannot establish an element of a particular offense. Detailed consideration of any shortfall in the proof of one or another of the particular charges may be avoided, so long as at least one is adequately established, by the use of concurrent sentences. But that does not necessarily result in the conclusion that there may be consecutive punishments, as clearly appears from Bell v. United States, supra, and subsequent cases.
. See Bell v. United States, supra, 349 U.S. at 83-84, 75 S.Ct. at 622, where Justice Frankfurter refers to the rule of strict construction as a general premise of the law, which does not “assume that offenders against the law carefully read the penal code before they embark on crime.”
. Supra note 6.
. Appellant did not ask the District Court for a hearing on the issue of what his intent was at the critical times. Nor did he allege that he broke into the house with robbery his ultimate objective. His counsel argued that consecutive sentences for housebreaking and robbery occurring in the course of a single transaction are illegal per se. I have already explained why I regard that automatic rule erroneous. But I join in voting to affirm rather than suggesting a remand because there is nothing in this record to dispute the possibility that appellant formed a new intention in embarking on the robbery. In seeking collateral relief, the movant has the burden of at least suggesting a factual basis for his claim. Of course, I view this affirmance as without prejudice to a new motion adequately raising this issue. See Sanders v. United States, 373 U.S. 1, 17-19, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).
. Rule 11, Fed. R. Cr. P., provides that a court shall not accept a guilty plea without first determining “that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea." The words italicized herein for emphasis were added by the 1966 amendment, but even prior to 1966 were considered by this court to be implicit in the rule. Edwards v. United States, 103 U.S.App.D.C. 152, 155, 256 F.2d 707, 710 (1958). This includes an understanding of the range of possible punishment. Carter v. United States, 113 U.S.App.D.C. 123, 306 F.2d 283 (1962).
Rule 11 suggests that a sentencing judge contemplating consecutive punishments would be well advised to make certain that the pleading defendant is aware of that exposure.
Appellant does not claim that the consecutive sentences imposed were greater than he understood at the time might be the judgment of the court. If that were the case he would likely have spoken up at once. What appellant relies on is the bare assertion that the court exceeded its sentencing authority under the law.
. 22 D.C.Code § 104 (1967).