McGuinn v. United States
191 F.2d 477
D.C. Cir.
1951
Check Treatment

*1 Pro- of Civil Rules Federal 8 of Rule U.S.C.A., requires that cedure, 28 * * * forth sets pleading A “(a) * * * contain shall relief a claim *

* * plain statement (2) short and en- pleader is showing claim ** relief titled to requires that Rule same of the (e) Section shall pleading aof averment Each “(1) plead- concise, direct.” simple, not contain does case before us ing claim, plain statement a short simple, con- neither are averments and its flagrantly viola- It so direct. cise nor been dis- 8 that should Rule tive of on no other. ground if on that

missed

Affirmed. STATES. v. UNITED

McGUINN

No. 10898. Appeals Court of

United States Circuit. Columbia District of May 17,

Argued 28, 1951.

Decided June *2 Columbia a two count in- rape pursuant

dictment charged sodomy D.C.Code (1940) 22-2801 and § pursuant (1940). D.C.Code 22-3502 § He has to serve from four been sentenced years .to penitentiary., twelve From judgment appeal. final he takes this appellant urged The has numer ous errors before this Court. He first con tends that there is insufficient corrobora required by tion as the rule in Kidwell v. States, 1912, rape. sustain the conviction for The rule case, Ewing in the Kidwell in was cited States, 1942, 135 F.2d 635 which is also relied the appellant. The rule stated as requires only in these cases that there be circumstantial evidence to corroborate the testimony of complaining in a witness rape case. As in Ewing case the testimony direct here was that of the com plaining ample witness. There is corrobo ration here as in Ewing bring case this case within the rule laid down in the Kidwell Ewing case. In the case com plaining twenty-four witness waited some hours before reporting the attack on her. In the instant case reported the attack was person nearest available police as soon as the complaining witness could free appellant. herself from the She was in a nervous and crying condition at reported the time she the attack ato total stranger. appellant The was found as McMenamin, Washington, Joseph A. D. complaining described witness in C, Miller,, whom Robert I. Wash- with the front seat pants with and shorts brief, C., appel- was on the for ington, D. down. As Ewing in complain case Mitchell, Washington, Curtis P. D. lant. ing witness had no motive to lie. The , appearance appel- C. also entered an for statements of the complaining witness were lant. throughout consistent the proceeding while Sommer, Atty., Joseph A. Asst. U.- S. appellant admitted the intercourse in C., George with whom Washington, D. writing subsequently and at the trial denied Fay, Atty., Joseph U. S. and M. Morris Similarly appellant it. made inconsist Atty., Howard, Washington, Asst. U. S. ent gave when he statements a detailed ac brief, C., appellee. on the D. were police count of the crime to and then tes tified on stand that he was too drunk CLARK, MILLER, K. WILBUR Before happened. to recall what In Ewing BAZELON, Judges. Circuit case signed there was no confession as n we have here. CLARK, Judge. Circuit appellant was convicted in the Unit- next contends that Court for the States District District trial court erred failing ed give, 2-7, not have guilt No. or innocence and should prayers1 least, his substance at Prayer granted. number eleven was 14-16. been 9 and 9 amended— denied, no properly there was evi- ade- were because 6 and Prayers numbered *3 doctor who ex- was not dence to that the appellant show and the quately covered appellant peculiarly was more not amined the prayers were his prejudiced because available to the Government than adopted requested. as appellant. Similarly prayer number four- amended, 4, 9, 2, 9 as Prayers properly there teen was denied because partly properly denied 12, 16 were 15 and mere was no evidence to show a narration portions of those correct the because the attack. of remaining por the given and prayers were incorrectly stated. requested, were tions, as appellant The next contends that prayer, seeks appellant’s second The a court have declared mis the trial should degree of of force or amount to define the attorney trial, in prosecuting the because consent, in is negative to necessary fear only opening his statement commented that require that the fear for would correct chal one woman had survived the defense Ewing case held in As we the be mortal. lenge. objection trial After an the court bodily harm” was or grave “fear of death jury as disregard told the to that remark trial court so required, ail that is improper. say that no it was Suffice it to instructed. request a was made for mistrial. Since the to a appellant elected take his on chance and sixteen four Prayers number exception, verdict, without motion or there with wholly proof inconsistent demand assignment is no foundation for the of incorrect. The consequently guilt and are 1900, States, Yeager 16 v. United error. necessary the only of evidence amount States, Lorenz v. ex which would that court instructed 1904, App.D.C. 24 of innocence reason hypothesis clude “the reasonably evaluated.” and ably viewed complains The also of 1947, U.S.App. 81 Curley v. United attorney prosecuting fact that the com denied certiorari 160 D.C. argument the fact that mented 1511, 91 L.Ed. 1850. 331 67 S.Ct. U.S. opening counsel did not make an defense and nine nine did not know Prayers number he what statement because The court consent. disclose. The trial with evidence would dealt amended proper must be “there remark was and properly court ruled this instructed undoubtedly the consent not taken of consent unless it was when out an absence of woman in fear putting the statement was with This by induced context. made by ap death or bodily story harm or which the grave new reference to against per her gave force the stand in contradiction pellant actual exercise of and nine as nine Prayer number But son.” his written confession. besides this request a fact the com was made a mistrial assume as fact no amended opposition not offer plaining did is no foundation for that as witness and there denied. Nine as Yeager should been error. v. signment and requires specific that a supra, further amended and Lorenz United Rape is not a exist. be found to supra. intent requires specific a intent. crime which appellant has been found again fifteen is in Prayer number complete jury after a full and a guilty ap Ewing case. The with the consistent By his of the evidence. as presentation prayer require 'by this sought pellant effect, he, in of error has asked signments utmost, and this is not resistance disregard the conclusions court this jurisdiction. in our the law jury. However the ver reached must be sustained when dict of wholly ir ten is Prayer number evidence, taking is substantial appellant’s there issue relevant requested to denote lumbia instruction. Prayer in the District of Co is used Government, particulars, setting with a view most favorable to the bill of forth the - States, particular support of- it. Morton v. United acts which constitute the F.2d 28 fense charged.” certiorari denied 324 U.S. S.Ct. not, however, The statute does make 1015, 89 L.Ed. 1428. commission of “a certain unnatural perverted practice” sexual Affirmed. crime. offenses,” acts “declared to be procedural provisions hence covered BAZELON, Judge (concurring Circuit above, set out are those defined in detail result). *4 by part part the first of the statute. That Appellant was convicted on two counts— reads: rape sodomy. for one for the other “Every person who shall be convicted state, which I shall I believe For reasons taking of into his or her mouth or anus sodomy the should be that conviction for. organ any person the sexual of other or I am to concur in the reversed. bound animal, or who plac- shall be of however, convicted brethren, by my result reached ing his or her organ sexual in the mouth or ¡general sentence since-the rule is that any person animal, or anus of other or or containing upon judgment an indictment who shall be having convicted of carnal count, with a verdict of than one more copulation body except in an opening of the each, upon will be sustained if the guilty sexual parts person, with another be shall upon any good, count is and suf- verdict $1,000 fined not more imprisoned than or be support judgment.1' Never- the ficient period years. Any for a not exceeding ten may theless, the interests I feel that serve person convicted under this section of of-justice com- and of this of the administration mitting person such act with a the improperly con- under has been who age years of sixteen be shall fined not more sodomy crime to state victed of the of $1,000 imprisoned or be period my for not briefly reasons for view that that * * * exceeding twenty years. fatally is defective. conviction ,The “Any penetration, however sodomy slight; is suf- provision which defines code complete ficient to specified the crime pro- it to be a crime further and declares vides, this section. Proof of emission shall that not 3 necessary.” be *** n “ any indictment case, In this the trial court any acts, hereby of the de- instructed commission of jury on by the sodomy merely count offenses, it shall not be neces- clared to be repeating .charge of the indictment particular sary to set forth the unnatural alleged which the accused had “com- perverted practice com- or sexual with the mitted a perverted certain unnatural and may of which defendant be mission practice.” sexual jury court told the particular charged, nor to set forth that.“As charge second was per- unnatural or [which manner in which said sodomy], nothing more need be committed, said ex- practice but verted sexual if, cept that general these principles of law the indictment it- be sufficient set shall discussed, that I course, apply that the-defendant committed a cer- forth second charge. It perverted prac- the. needs no tain unnatural and sexual further animal, elaboration.” He did person part or as the case not-read that tice with a accused, the statute Provided, defining the That the offense may sodomy be: jury nor did motion, be entitled to furnished he describe shall or be discuss years 1936, Ohio, 12 to 4 which State of is within 1. Whitfield v. 297 U. the limit possible rape 778; for L.Ed. S.Ct. 80 conviction. S. See D.C. (1940 ed.), Code § 142 U. 22-2801. v. Claasen 140, 146-147, 12 35 L.Ed. S.Ct. S. (1940), 2. D.C.Code (Emph 22-3502. § Marzani v. United a supplied.) sis 133, 141; U.S.App.D.C. 78, 86, 168 F.2d Cir., 1934, Ibid. Shelton Appellant here was sentenced A is error any of the elements struct the of law involved necessarily ments of out in the statute nothing of them. Without Williams the court crime, er the evidence its Justice not court’s attention concerning similar errors act made stitute the crime Chief Justice " * * * trial court function, law give of this requires. the defendant v. United 299, 300-301, of the essential jury sodomy are jury is not include criminal This in a criminal Vinson, then an Associate court, said for the court in “ in the case’ ‘on before it constitutes the by counsel: charged. most fundamental charge as a the elements but States, 1942, 76 all essential of the equipped 131 F.2d specifically spelled not called to the to decide elements of the a statement protection Here, the ele jury was told offense. This case must ” 4 statute. As whole which con and those questions perform wheth 22-23 kind. U.S. does in latter is tion of Just meeting made guilty of it. proper murder law, issues portant cedure. its ticular case does not judgment defendant the death in his casual But of structed “ judgment. * * * [*] jury, as to have a as a under the upon instruction, what fair trial is, *5 supposed know, guilty penalty of a [*] lawyer might a a defendant to have a go scientists, which it is to group It value is To acquaintance We with clear safeguards law or is [*] say by insuring is not to might almost, might not have found judge, merely decide applicable safeguard that the an responsible citizens, so [*] be informed and be not have open may pass judgment? who delineation, if if of correct insist that the with the law. interfere with ignorant this [*] impartiality. not, peers. The jury, our institu- to his a mind, knows the juror jury in- inflicted man is under [*] in a if it pro- par- im- legal is entitled to this instruction if it charge the fail- defect of the “A basic accept duty passing upon must and define the offenses in- ure discuss very life and death of a man. The law Rape within the indictment. cluded requires it.” generally, much less broken not defined elements; into natu- down its constituent proprieties good Conventional taste result, rally, elements were not as a leaving ig- cannot in total excuse * * * or defined. discussed speculate norance to on the definition of “ * * * always proud We have been very upon they sitting crime which are go law our the elements that under judgment. up definitely a crime are estab- to make for the did not raise the Counsel accused insist that be told what lished. To any at time either in the trial court issue is, and, require, rape when circumstances appeal. 52(h) or on But Rule of the Fed are, eyes the included offenses what Procedure, 18 eral Rules of Criminal U.S. law, meaningless is not to demand C.A., decided cases make it clear average man has idea some ritual. may notice errors that we as fundamental is, what murder but would not ex- we as this our own initiative.5 one say, Jurors, you pect judge know what U.S.App.D.C. eases collected in Williams v. United See 5. Tatum v. United at 300 n. -, 190 F.2d See eases collected at n. and Tatum n. 4. id. supra note at n. 3.