Brouse v. United States
68 F.2d 294
1st Cir.
1933
Check Treatment

*1 MORTON, Cir- Before WILSON and LETTS, Judge. Judges, cuit Judge. MORTON, Circuit using the The defendant was convicted important in a scheme to defraud. The mails questions relate to appeal were limitations. There four indictment, on as based counts alleged to were letters. January 23, 1929, Au- on have been mailed October gust 2, 1929, October sent to 1929. All of them were out- plaining Boston witness Massachusetts. the state district of side the latest date which It will be noticed indictment, charged to a crime October plea in bar special The defendant filed a alleging which was re- February 15, 1933, not found turned on after the crimes within three words, that charged; in other offenses therein The United was outlawed. plea that indictment this replied “the defendant was not barred because this Hon- fleeing from the orable Court of the offenses commission the indictment.” On filing date of the waived, trial raised, issue thus approved by agreement parties, and, Hale, by Judge the issues fact and by him. Pat- were tried involved in 276, 50 ton v. 854, 70 L. R. 263. 253, 74 L. Ed. parties stipulated At “actually physical- was not when ly” the district Massachusetts mailed, in question was the letters either of mailed, all other words faces, from outside Mas- appears on their place of resi- sachusetts. *2 295 committed, pres- which that constructive alleged in the denee is not state, may he was “com- ence within a charges district or count in the first early at times sufficient to conviction if the defend- resided morant Boston” at there, is not sufficient to be found Hotel Vendóme in 1929 at the year this is justice. state him from That its during later months of allege that ho was clear. so under the extradition seems The other counts statutes of Maine. Hyatt Corkran, dates New York rel. Boston on the ex eommorant in 657; Hale overruled 23 S. Ct. 47 L. Ed. South offenses. cer- opinion. Bailey 1933) He refused 289 bar, (May U. S. plea in Carolina v. without rulings requested by the defendant 1292. 77 L. Ed. tain typical: are point The doubtful is whether lied find that accused (1) “In order to applicable federal dis- have he must justice of said jurisdic- independent states tricts. The are within said dis- physically been beyond powers tions whose do not extend of the letters least one trict when at their own borders. Under the Constitution to the addressee Clark be delivered caused to they have the States, and laws of the United alleged, and inasmuch therein Boston as at right other the sur- to demand from each he cannot be said present as he was not fugitives justice. The situ- render of from from the district.” have fled very ation is different as to the United States. law can- a matter of (2) “The accused throughout territory. powers Its extend its person not he said merely Its districts are administrative divi- appears as indictment when under said historically practical- They sions. stand merely constructive- that most was ly footing on a from the states. said district when present in said may person A who violates the federal alleged said to he delivered as were caused for tri- arrested wherever found and removed indictment.” crime was commit- al to and evidence (4) all the law “On right ted. is as broad as This removal person not a the accused was find Loisel, right Salinger 265 prosecute. district.” said 989, the 44 68 L. Ed. U. S. S. Ct. put then trial on was indicted in the district Judge MeLellan and a the indictment before using in a scheme North Dakota for the mails the offense was convicted by causing him mailed to defraud a letter urged for the charged. principal Iowa delivered to the addressee to be plea in (1) bar should delivery are North Dakota. It was hold (2) that the court was sustained; been of the letter in North Dakota made try up- jurisdiction to without same statute as that ishable there under the general issue; (3) that a verdict founded, present on which the indictment is guilty have been directed as subject of not that he to removal to North Where, count. facts, for trial. on similar Dakota ob- under state law for prosecu real taining money by pretenses made While the tion was outlawed. through mails, extradition was denied. charged in prove the exact date not hound (D. C.) F. 1 Tennessee v. Jackson 36 accepted on indictment, that date will he A. 370. R. limitation, is in unless evidence questions of vary it. Greene v. United States troduced The essential characteristic No (C. A.) 154 F. 411. such evidence C. residence, one’s February 15, 1933 introduced; and as resort, concealing of abode usual the date was more than three self, with one’s the intent to avoid punish charged offense indict the last O’Brian, ment. United States v. Fed. Cas. barred, prosecution is unless the ment, the 15,908; Streep States, No. 160 reason of was tolled 365; 16 Ct. 40 U. S. S. L. Ed. years after the commission of the 154 States, (C. F. 401 Greene v. “person the defendant was a crime 5th), 28 certiorari denied U. S. justice.” 18 USCA §§ 52 L. Ed. Ferebee v. United position 4th). The defendant’s as stated in 295 F. 850 C. A. It has quoted was, requests for hold that judicial cannot he a district in which justice in a district in which he was not offense was if he left usual at the time when abode and resort and concealed lowing de- crime, shot another himself; but a seaman who Harbor fendant American vessel in Havana three winters Ark., during authorities he was imprisoned at least one of which Cuban They accompanied by expiration sen- children. assault, and his wife and *3 apartment. au- lived the inter- tence delivered to the United States in an He vening be a summers These held not to at Estes Colo. thorities, was places during imprisonment, and there- the of the were remote from scene 1933, January, to of the stat- fore was entitled benefit crime. He was arrested in the Antonio, striking during of that interval. Unit- ute San Tex. There was a 60, 59, change (C. C.) ed Hewecker 79 F. in habits to his cus- defendant’s as States 46, tomary im- resort, beginning certificate dismissed 164 U. S. of almost mediately See, too, 41 Ed. 345. after the crime. the of Lowell, wholly say Brown, unexplained. Cas. No. It stands Fed. We cannot applied Judge in the prompt- in that Hale’s that was whaling by vessel, prosecu- of who ed a arrest case of an- officer a to evade -and high and a seaman. on the seas tion was unwarranted or His unreasonable. assaulted vessel for stand. remained on the the decision on the in abatement must thereafter pletion voyage, period'of more than of the a urges let defendant that the The also years. January ter which he wrote of during any given person is Whether a re complaining witness, so Clark, the justice in the federal period a subject-matter from the con mote in time clear, a as these decisions courts Oc summation erime question determined from be ought tober, that it not to have been admitted nothing There is artificial acts and intent. jury, that a ver trial before the cases, is extradition no about as there in it, guilty ought dict to have been not direct of defendant have been that the ed on first count. This letter was he is present in the Judge carefully fully by Me with dealt and have run from there. wanted for charge. left it to the Lellan in his He flight fleeing which tolls The merely a friend say the letter was of the United not approaching move on note, or was an .any particular For district. scheme, he for part in a opinion that are of these we reasons be mulated, to swindle Clark. letter requests rulings two of the standing alone, something read, as but not correctly refused. connection with facts circumstances request presented ques The fourth relations between Clark and the defend any evidence that tion whether-there we to the ant. the matter fugitive. On the face of the defendant was right. judge was think the trial appeared to papers the af- judgment" of the District Court is government alleged that theAs have run. firmed. by the been tolled fact had justice, the burden LETTS, District Judge (dissenting). establish fact. that was on the Being unable to concur full showing the evidence follow There was briefly court, shall decision of complain ing facts: only my relate grounds dissent. These Clark, acquainted at witness, became ing opinion deal- part decision Vendóme, Boston,- spring in the. Hotel as sufficiency bar with the very frequently there the two met request No. 4 by the defendant’s raised York until in Boston in New after agrees The court here Hale. Shortly hav the crime. completion of government to es- that the burden pretenses from Clark ing obtained “flee- the defendant was tablish ing October, the defendant left $63,000 interim, during the justice” country; not part thereof, between October sufficient arrest, nor to until under to have returned toll February 15,1933, as to He persons here. have communicated with limitations. running of the statute of (the defendant) would told Clark that allege, nor The indictment does December Vendóme on Hotel of, any place or usual fixed roo-ms reserved for that had suggests the defend- abode. The record Letters sent to date, he did come. but itinerant, and after both before address were at New Orleans Clark offense. fol- the commission appeared It further answered. any before A.) 295 F. practice was however, disclose that this to whether prior it the as than after October meaning of the statute within the three-vcar During whole thereto. wherein outstanding no there was place defendant’s usual notice he resided. no pending no established, and clearly abode was prosecution. So- complaint intended lof departure there- was evidence of the defendant’s discloses,the defendant far as the record purposeful concealment. nothing even absent and not abode, nono from usual The case of v. Hewecker United States no There is or established. (C. C.) 79 F. so far as deals with atwas the time the *4 of what constitutes a Colo., Orleans, Estes New justice, hold plea sustained the abatement places, Palmer, Chicago, or other the Hotel of limitations was move- identity or cloaked his concealed Ms defendant, tolled any secrecy. ments with being although the country, outside was there charge imprisoned under held convic overruling Hale in there committed. tion for grounds or tho abatement disclose predicat- findings upon that action ma- that the effect of the seems to me however, -of Granting, that his action ed. jority opinion, view of the state involved a virtually to record, is set aside moved about for Granting applicable. here avoiding still, unless the intent deserving that tho case base which to some remedy miscarriage of ishment, the to avoid un- finding, remains for this court an such a justice complaining wit- in such eases is question of mixed law. delay prosecuting officials nesses statutory after tho action on their until opinion do majority The cases cited period has run. support conclusion them, view In the ease United in this ease. reached Court judgment O’Brian, Fed. Cas. No. States v. should be overruling the in abatement ground jury found for the defendant on reversed. that the offense was barred. Streep In ample 40 Ed. justice of the of a issue involved of New York. a defendant v. WHEATLEY. REILLY order to toll the statute of tho United held that it not neces States. Appeals, First Circuit. Circuit Court jus sary be an intent to avoid the that there tice of the United States if is established of the state avoid intent jurisdiction having over criminal territory the same act. In of Greene v. United States the ease A.) 154 F. that instruc- deputy marshals tions been issued resided, the defendants of the district wherein not there be and that the defendants could they were found in Southern found, that York, they there resisted of New Georgia proceedings remove indict- trial, later fled to Canada. The charged that the defendants were ment itself justice, and, persons supported evidence, aforementioned tbe submitted to and found of fact was adversely the defendants. case of Ferebee tho v. United States