Pierre v. United States, 275 F. 352

275 F. 352 | 8th Cir. | 1921

TRIEBER, District Judge.

The defendant, plaintiff in error, was indicted for violation of the A.ct of Congress of February 14, 1917, c. 64. 39 Stat. 919 (section 10200a, U. S- Comp. St. 1918). The indictment is as follows;

“The grand jurors of the United States within and for the district and division aforesaid, duly impaneled, sworn, and charged, at the term aforesaid of the court aforesaid, on their oaths iind, charge, and present that one Pietro Pierre, on or about the 1st day of October, A. D. 1918, in the county of Ueai enworth, in said district, did unlawfully, willfully, knowingly, and feloniously make a threat to take the life of the President of the United States by then and there declaring in substance as follows, to wit: ‘The President ought to be killed, and 1 am going to do it as soon as X get, a chance.’ And this he, the said Pietro Pierre, did, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America.”

A demurrer thereto was by the court overruled, and upon a trial to a jury a verdict of guilty returned. A motion to dismiss the writ of error was made upon the ground that the bill of exceptions was not signed and settled by the judge within the time provided by law and the rules of the court.

¡1,2] The facts as they appear from the record are, that the trial and conviction were had on October 18, 1919, at the October term, 1919, which term expired on January 12, 1920. The writ of error was allowed on October 22, 1919, and the citation signed on October 25, 1919. On that day the defendant was granted 60 days to present for settling the bill of exceptions. On December 19, 1919, before the expiration of the 60 days, 60 days’ additional time was granted for the presentation and signing of the bill of exceptions, which would expire, allowing full 120 days, on February 22, 1920. On February 25, 1920, 3 days after the expiration of the 120 days, and after the lapse of the October term, an additional 60 days was granted. This last order of extension was too late, and therefore coram non judice. O’Connell v. United States, 253 U. S. 142, 147, 40 Sup. Ct. 444, 64 L. Ed. 827; Anderson v. United States (C. C. A.) 269 Fed. 65, 79. Therefore we cannot consider the hill of exceptions.

But there was a demurrer to the indictment, which was overruled by the court and assigned as error in the assignment of errors. It is our duty to pass on it. The motion to dismiss is therefore denied.

[3] An indictment to which a defendant is required to plead must set forth facts so distinctly as to enable the defendant to prepare his defense, and so particularly as to enable him to plead a former conviction or acquittal, if again indicted for the same offense, and upon such a plea that fact must appear from the face of the indictment. United States v. Hess, 124 U. S. 483, 488, 8 Sup. Ct. 571, 31 L. Ed. 516; Miller v. United States, 133 Fed. 337, 347, 66 C. C. A. 399; Fontana v. United States (C. C. A.) 262 Fed. 283, 286. This indictment is defective in that respect. It fails to charge that the alleged threats were made to or in the presence of any person. If the defendant should again be indicted, and the indictment charge to whom, or in the presence of what person or persons, the alleged threats were made by the defendant, a plea of former acquittal or conviction under this indictment could not be sustained. There is nothing in it showing that fact.

The court erred in overruling the demurrer to the indictment, and the cause is for this reason reversed.

STONE, Circuit Judge, dissents.