200 F. 494 | 8th Cir. | 1912
Lead Opinion
Most of the testimony was to the point whether defendant, at the time he purchased the stamps, knew that they were from an unauthorized source. As against him there was testimony as to the unusual quantity of stamps; that he hesitated before buying; that he bought them at a discount, and did not ask from whence Burt obtained them; there were four purchases; in the last purchase there were “postage due” stamps,and stamps of large denomination; what he said and his .conduct-after the transactions were all concluded; that he resold patt of the stálñps at a discount, but at a profit; and facts tending to show that the purchases were unusual by a banker and experienced business man. As favorable to him was testimony of his good character; that he bought and received the stamps, with knowledge of the bank officials and clerks at the bank, during business hours; that he purchased them from Burt, the city chief of police; that the Erst two purchases were for the bank, it receiving the profit; that all the purchases were covered by checks, of which records were made; that his sales were covered by checks; that he did not invoice the stamps, and did not know there were stamps for “postage due” or stamps of unusual denominktion; -that he promptly disclosed to the post office inspéctor and bank examiner the transactions when inquiry was made.
"No person shall he held to answer * * * for an Infamous crime, unless on a presentment or indictment of a grand jury.”
In effect the government now insists on amending the indictment by striking out the words ‘‘from various post offices in the state of Kansas.” That was what was in fact done in the case of Ex parte Bain, 121 U. S. 1, 7 Sup. Ct. 781, 30 L. Ed. 849, a case against a national bank officer for falsifying the books with intent to deceive the United States, depositors, and others, “and the Comptroller of the Currency.” The words “Comptroller of the Currency” need not have been alleged. Those words, on motion of the United States attorney, were. stricken out by the court as surplusage. After conviction the Supreme Court, in habeas corpus proceedings, held the judgment to be void. It was conceded that there was no necessity to allege that the Comptroller was deceived, as we concede that it would be a crime to knowingly receive stolen stamps from wheresoever stolen from the government. But it is alleged that the stamps were stolen within the state of Kansas.
An indictment is for the purpose of conferring jurisdiction and advising the court of the charge, and to advise the defendant of what he must meet; and if, after thus advising the defendant that the stamps were stolen in Kansas, the government can be allowed to show that they were stolen in some other state, such an allegation is misleading, and can be used as a snare to deceive a prisoner. In Iowa, for keeping a gambling house, an indictment is sufficient which charges the building to have been within the county. But in State v. Grogan, 8 Iowa, 523, the allegation was that the building was on a certain lot within the county. The evidence showed that the building was on a lot other than as charged. I-Teld, that a verdict of acquittal should have been directed; the opinion reciting:
“In this ease it was not necessary for tile pleader to have stated the location of the house kept, further than to show the proper venue. Having alleged, as a matter of local description, that it was upon a particular lot, the proof should have sustained the allegation. The instruction should have been given” — citing section 281. Wharton’s Criminal Law, and other authorities.
Burt was the chief .of police of the city, and believed by all to be an upright officer. He concedes in his testimony for the government that he at no time told defendant from what source he had obtained the stamps. At the trial he testified that he had obtained them from one Callahan, the keeper of a “fence” for stolen property. Where Callahan obtained them is not disclosed in the record. There is no testimony in the case that defendant at any time knew that they came from Callahan, and he had never heard of the man Callahan. And still further: There is no evidence as to where nor from whom Callahan received them, nor whether he received them lawfully, or unlawfully or whether from a post office, or from others having bought them from the government. The only showing is that Callahan is a bad man, and that he sold the stamps at a heavy discount. It is no answer to say that receiving the stamps with guilty knowledge is the gist of the allegation. The stamps must have been stolen from the government, and the court correctly charged the jury:
“That the government must prove beyond a reasonable doubt * * * that those stamps were stolen from post offices In this state.”
And such is the statute under which the indictment was returned. Criminal Code, § 48 (Act March 4, 1909, c. 321, 35 Stat. 1098 [U. S. Comp. St. Supp. 1911, p. 1603]).
No one of these inspectors had personal knowledge of the robbery at any one of the post offices, but of necessity such information was imparted by some post office officer or other person claiming to have knowledge. So that any information to the post office inspectors was hearsay. The report of the post office inspectors to the inspector in charge was hearsay of hearsay. The inspector in charge had assistants in his office tabulate these reports, the inspector in charge retaining such tabulations. Again this became hearsay of the two preceding hearsays. The reports themselves were sent to the post office department at Washington and were not produced at the trial. The inspector in charge was produced as a witness in this case, and recited this abstract that had been thus presented to him by the clerks and assistants in his office. There is no statute making these reports admissible as evidence, and there could be no such valid statute covering a criminal case, because so to do would not be confronting the defendant with the witnesses against him. This testimony should have been excluded, as being hearsay and incompetent.
' The act of a notary public in protesting a check for lack of funds is in all countries where either the common or civil law prevails en-vitled to full weight, and well, nigh conclusive proof of the fact recited. But in State v. Reidel, 26 Iowa, 430, it was decided, Chief Justice Dillon writing the opinion, that a certificate of a notary could not be introduced in evidence against a defendant in a criminal case, by reason of it being in violation of the constitutional provision that a defendant in such a case must be confronted by the witnesses against him. Under the statute of March 3, 1875 (18 Stat. 479, c. 144 [U. S. Comp. St. 1901, p. 3675]), the record of conviction of a party for stealing government properly was conclusive of the fact that the property was stolen, under an indictment against one for receiving such property. That statute was held to be void in the case of Kirby v. United States, 174 U. S. 47, 19 Sup. Ct. 574, 43 L. Ed. 809, as being in violation of the constitutional provision in question. If the solemn act
The motion for a peremptory direction to the jury to find the defendant not guilty should have been sustained.'
It was argued by counsel for the government that it is not necessary to make it appear that the stamps were stolen within the period of the statute of limitations — a proposition possibly correct.. An indictment is for the purpose of conferring jurisdiction and to advise
()ne can readily see why the government ought not to be compelled to allege by whom stolen, because such fact might not be ascertainable. But, if offices had been robbed, the government through its several agencies knew that fact. Every post master.daily knows of the amount of stamps and the denominations thereof his office has on hand. Every office is debited with the stamps supplied on requisitions, and is credited with the sales made, when followed by remittances. If it were a fact that offices had been burglarized, such fact could easily be made known to the grand jury, and the grand jury could and should have apprised the court and the defendant of such fact.
The count in question of the indictment has three recitals “to the grand jury unknown.” The number and denomination of the stamps are alleged to be unknown, the names of the post offices from which the stamps were stolen are alleged to be unknown, and the names of the parties who stole the stamps are alleged to be unknown. The last is immaterial under the holdings of the Supreme Court, and there need have been no allegation with reference to that matter. But the first two of said matters are important, and are allegations put in issue by the plea of not guilty, and are allegations that must be sustained by evidence on the part of the government. If post offices had not been burglarized, and stamps taken, later bought by defendant, there should have been no indictment. And if offices had been broken into, the government agencies knew the facts, and specific and definite allegations could easily have been made, both as to the number and the denomination of the stamps stolen and from what offices stolen. It is of great importance that the criminal laws be enforced against violators of the law, and technicalities should not be used as a shield for criminals. But it is of equal importance that the liberty of citizens should be a matter of concern, and, before a person is put on trial for a felony, an indictment should be returned against him, and that such indictment be allegations of fact, and not of recitals “which are to the grand jury unknown.” Such allegations are permissible from necessity only when the grand jury does not have and cannot obtain a knowledge of the facts. United States v. Riley (C. C.) 74 Fed. 210 (by Taft, Circuit Judge); State v. Stowe, 132 Mo. 199, 33 S. W. 799,
_ Of the many cases cited by counsel, and those found by independent investigation, the fact is disclosed to us that apparently there is nó case but the name of the post office and when the larceny was committed are recited in the indictment. The recent case of Floren v. United States, 186 Fed. 961, 108 C. C. A. 577, decided by this court, is & case in point, with many of the leading authorities cited by Judge Sanborn in the opinion. The indictment in that case was for posting a nonmailable letter. The letter was not set out in the indictment. The date of the letter was not given, nor was it in any way identified. It was alleged that it was deposited in the mail in a certain county, but the name of the post office was not stated. It was held that the indictment was subject to a motion in arrest of judgment after verdict of guilty.
It should be kept in mind that the elementary and fundamental proposition with reference to a demurrer to an indictment is that a question as to its sufficiency must be considered upon the sole theory that the defendant is presumably innocent. The substance of this indictment is that said stamps, of an aggregate value, without reference to kind or denomination, had been stolen at some unknown place, by some unknown person, at some unknown time. As illustrations, see Pettibone v. United States, 148 U. S. 197, 202, 13 Sup. Ct. 542, 37 L. Ed. 419; United States v. Hess, 124 U. S. 483, 486, 8 Sup. Ct. 571, 31 L. Ed. 516. The language of the opinion in'the case of United States v. Cruikshank, 92 U. S. 542, 558 (23 L. Ed. 588), as used by the Chief Justice, is quite appropriate here:
“Tile object of tbe indictment is, first, to furnisli the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and. second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intents, and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances.”
A'concurring opinion of Justice Clifford in the same case is likewise appropriate:
“Descriptive allegations in criminal pleadings are required to be reason'ably definite and certain, as a necessary safeguard to the accused against surprise, misconception, and error in conducting his defense, and in order that the judgment in the case may be a bar to a second accusation for the same charge. Considerations of the kind are entitled to respect; but it is obvious that, if such a description of the ingredient of a defense created and defined by an act of Congress is held to be sufficient, the indictment must become a snare to the accused, as it is scarcely possible that an allegation can be framed which would be less certain, or more at variance with the universal rule that every ingredient of the offense must be clearly and accurately described, so as to bring the defendant within the true intent and meaning of the provision defining the offense.”
The District Court was in error when it overruled the demurrer, and likewise in error when the motion in arrest of judgment was overruled.
It is so ordered.
Concurrence Opinion
I concur in the reversal of the judgment, but not in all that is said to that end. Nor do I concur in the criticisms of the third count of the indictment, and as their effect is not confined to this case, but affects generally the future administration of justice, I feel I should briefly express my views.
It should be borne in mind that the crime charged is not larceny, but, on the contrary,, the receipt by the accused with intent to convert to his own use stolen property of the United States, knowing it to have been stolen. The crime is not accessorial, but a substantive one defined by statute, and all the elements are charged in the indictment. This is not denied, but it is said by my Brothers that the charge is not made with sufficient particularity to make it good in law, and in support of that conclusion various omissions are recited in the foregoing opinion. Uet us see what they are:
(1) The name of the party who stole the postage stamps which the accused received is not given. But it is conceded in the opinion that he need' not have been named in the indictment. In many cases it would be impossible, and doubtless was impossible here. See Semon v. State, 158 Ind. 55, 62 N. E. 625.
(2) The indictment does not charge when the stamps were stolen, other than “theretofore.” But if the crime charged had been the larceny itself, and the date had been specified, the date need not have been adhered to in the evidence. Proof of a time within the statutory limitation would be sufficient even on a charge of larceny. It seems to me that the particular time of the theft is unimportant in a case like this. The details of the theft, when, where, and by whom committed, are not elements of the offense of receiving stolen property, and it is unnecessary to set them out descriptively. See Commonwealth v. Campbell, 103 Mass. 436.
(3) While the aggregate value of the stamps is stated, their number and denominations are not specified. But the description in the indictment is:
“A large number of United States postage stamps of various denominations. the exact number and denominations of said stamps being to the grand jurors unknown, and being of the aggregate denomination and value of three - hundred and fifty dollars.'’
This seems to me quite sufficient. The requirement of my Brothers imposes an impossible task of pleading in this and many other cases of the character. Reflection upon the frequency of post office burglaries, the theft of stamps of various denominations from various offices, the bunching and handling of them for disposal, not by particular description, but by value, the ease of admixture, use, etc., makes ubvious the burden imposed. See Miller v. State, 165 Ind. 566, 76 N. E. 245; State v. Kosky, 191 Mo. 1, 90 S. W. 454. In the first of
(4) That while the indictment charges the stamps were stolen from “certain post offices in Kansas,” the names or locations are not given. Yet, as I read the foregoing opinion, it is elsewhere said that the above-quoted words might properly have been omitted. See State v. Crawford, 39 S. C. 343, 17 S. E. 799. In this case it was held that the indictment need not state either the time or place of the larceny.
The above are the omissions which it is held render the indictment fatally defective. I cannot, however, avoid the conviction that it is amply sufficient to advise the accused of the crime charged, and to enable him to plead the judgment in bar of another prosecution. It describes the property as postage stamps; that they were of a specified aggregate denomination and value, and states that they belonged to the United States, but had been previously stolen from post offices in Kansas; also that, knowing the stamps had been stolen and intending to convert them to his own use, the accused received them from a man whose name is given, on or about a date specified, and in Sedg-wick county, Kan. What more is heeded? It is alleged that the names of the post offices and the stamps stolen from each are unknown to the grand jurors; and that might well be so. The name of the person from whom the stamps were received is given, and, though not necessary to be stated (174 U. S. 47, 19. Sup. Ct. 574, 43 L. Ed. 809), it would nevertheless be of value in identifying the offense, if such identification had not already been made. Hendricks v. United States, 223 U. S. 178, 32 Sup. Ct. 313, 56 L. Ed. 394, is a late evidence of the tendency of the Supreme Court upon the subject of criminal pleading.