173 F.2d 684 | 10th Cir. | 1949
An indictment was returned in the United States Court for Kansas, charging that on or about June 13, 1946, on lands acquired for the use of the United States and under the exclusive jurisdiction of the United States, Frank Carter with premeditation stabbed and murdered Fernando Cervantes. The defendant entered :a plea of guilty to murder in the second degree and was sentenced to imprisonment for a period of forty years. The defendant subsequently filed in the case a “motion for relief from judgment” in which he sought to have the judgment and sentence vacated. The motion was denied. About eighteen days later, the defendant filed a motion -to vacate the order denying the motion for relief from judgment, -and for a resubmission. In such motion, it was alleged that the clerk of the court withheld notice of the order denying the motion for relief from judgment until after the time for appeal from such order had expired. An order was entered denying the motion to vacate and for a resubmis-sion, and the defendant appealed from such order. The order was reversed and the cause remanded with directions. Carter v. United States, 2 Cir., 168 F.2d 310. After the mandate was spread, the court entered an order denying the motion for relief from judgment. This appeal is from that action.
The contention urged for reversal of the order is that the indictment was insufficient in law. The argument is that malice is an essential element of the crime of murder and that the indictment failed to charge that element. Section 273 of the Criminal Code, 18 U.S.C.A. § 452 [now §
Where a statute creating an offense sets forth fully, directly, and expressly all of the essential elements necessary to constitute the crime intended to be punished, it is sufficient if the indictment charges the offense in the words of the statute. It is only where the statute is in general terms and does not set out expressly and with certainty all of the elements necessary to constitute the offense that the indictment must descend to particulars and charge every constituent ingredient of which the crime is composed. United States v. Crummer, supra.
The Federal Rules of Criminal Procedure, 18 U.S.C.A. were in effect at the time of the return of the indictment in this case. Rule 7 provides in presently material part that the indictment or information sháll be a plain, concise, and definite written statement,of the essential facts constituting the offense charged. And Rule 58 provides that the forms contained in the appendix of forms attached to the rules shall be illustrative and not mandatory. The first form in the appendix is for murder in the first degree of a federal officer, and the second is for murder in the first degree on a federal reservation. The indictment in this case was drawn literally in the language of the second form. After alleging the time and place of the offense, about which there is no question, the indictment charged that the defendant with premeditation stabbed and murdered the deceased. That charge of murder was sufficient to include the con-stitutent element of malice, as defined in section 273 of the Criminal Code,. supra. Ochoa v. United States, 9 Cir., 167 F.2d 341.
The order denying the motion for relief from judgment is affirmed.