Richard Lee COLLINS, Petitioner-Appellee, v. T. Wade MARKLEY, Warden, United States Penitentiary, Terre Haute, Indiana, Respondent-Appellant.
No. 14641.
United States Court of Appeals Seventh Circuit.
May 11, 1965.
Rehearing Denied June 29, 1965.
346 F.2d 230
6. We believe that the district court properly submitted to the jury two forms of verdicts as to Cudia and two as to Turner. As to each defendant there was a form finding him guilty and a form finding him not guilty. The jury signed the form as to each defendant which read “We, the jury, find defendant [here the name of a defendant was entered] guilty“. There was no error here.
For these reasons the judgments from which this appeal was taken are affirmed.
Judgments affirmed.
Castle, Circuit Judge, dissented.
Richard P. Stein, U. S. Atty., Robert W. Geddes, Indianapolis, Ind., for respondent-appellant.
Sigmund J. Beck, Indianapolis, Ind., for petitioner-appellee, Sidney Mishkin, Indianapolis, Ind., on the brief.
Before HASTINGS, Chief Judge, and DUFFY, SCHNACKENBERG, KNOCH, CASTLE, KILEY and SWYGERT, Circuit Judges.
DUFFY, Circuit Judge.
By complaint dated April 12, 1961, petitioner was charged with the unlawful sale, on or about September 15, 1960, of three grams, 140 milligrams of heroin hydrochloride not in pursuance of a written order of the person to whom said heroin was sold, on a form issued in blank for that purpose by the Secretary of the Treasury or his delegate. The complaint disclosed that such sale was made to Clarence Cook, a federal narcotics agent.
Petitioner requested a preliminary hearing. On April 13, 1961, a probable cause hearing was held before a United States Commissioner. The only witness was Clarence Cook, the federal narcotics agent. The Commissioner found probable cause.
On May 18, 1961, an indictment was filed charging petitioner in two counts with the illegal sale of narcotics in violation of
On October 11, 1962, petitioner appeared before Honorable Cale J. Holder, United States District Judge. H. Perry Smith who had been representing petitioner and who was selected by petitioner to act as his attorney, withdrew from the case. Attorney Donald Metz was appointed to represent petitioner.
It should be noted that at no time did petitioner file any motion attacking the sufficiency of the indictment, nor ask for the name of the person to whom he was alleged to have sold the narcotics.
On July 26, 1963, petitioner addressed a letter to Judge Holder which the Court ordered to be filed and considered as a motion pursuant to
On November 6, 1963, based upon this Court‘s decision in Lauer v. United States, 320 F.2d 187, petitioner filed a supplemental motion to vacate and set aside the sentence and judgment alleging the indictment was defective because it failed to contain the name of the person to whom he was alleged to have sold the narcotics.
The District Court entered findings of fact and conclusions of law, and ordered petitioner to be released from custody because the indictment failed to name the person to whom petitioner was alleged to have sold the narcotics. The Court relied solely on the authority of Lauer v. United States, supra.
In Lauer, we directed the District Court to vacate the judgment of conviction and to discharge the petitioner from further imprisonment because the indictment charging an offense under
In Powell v. United States, 7 Cir., 338 F.2d 556, we commented that our decision in Lauer had been criticized by Courts of various other Circuits. We are now informed that the Courts in some twenty-five different cases from six Circuits have considered our decision in Lauer. In none of them has the Lauer decision been approved.
Sitting en banc in the instant case, we have again considered our decision in Lauer. We now conclude that we were in error in our decision and holding in Lauer. We now hold that the omission of the name of a purchaser from a charge under
The sufficiency of an indictment is to be measured by certain guide lines. First, the indictment standing alone must contain the elements of the offense intended to be charged, and it must be sufficient to apprise the accused of the nature of the offense. Second, after conviction, the record of the case must be sufficient so that the accused can plead the judgment in bar of any subsequent prosecution for the same offense. The same test is applicable on a collateral attack under
In the instant case, every essential ingredient of the offense was charged. Petitioner was sufficiently apprised of the nature of the charges against him. It seems certain that the record of the case is such that petitioner could successfully plead the judgment in bar to a later prosecution of the same offense. Furthermore, petitioner was not prejudiced in any way because the indictment failed to contain the name of the purchaser. Petitioner knew the name of the purchaser well in advance of the day that he entered his plea of guilty. He never had any doubts of the identity of the purchaser.
It is, of course, understandable that the District Judge felt bound by our decision in Lauer and ordered the petitioner discharged from custody. However, as this Court, sitting en banc, has concluded that Lauer v. United States, 320 F.2d 187, was wrongly decided, we must reverse and remand this case with instructions to vacate and set aside the order of the District Court which ordered petitioner herein released from custody.
Mr. Sigmund J. Beck, a prominent member of the Indiana Bar, accepted the appointment as court-appointed counsel for the petitioner herein. Mr. Beck has devoted himself with fervor and enthusiasm in representing Richard Lee Collins on this appeal. He has acted in the highest tradition of the bar. This Court is deeply indebted to Mr. Beck for the splendid service which he has rendered.
Reversed and remanded.
CASTLE, Circuit Judge (dissenting).
I dissent on the basis of my views as expressed in Lauer v. United States, 7 Cir., 320 F.2d 187.