United States v. Debrow. United States v. Wilkinson. United States v. Brashier. United States v. Rogers. United States v. Jackson
203 F.2d 699
5th Cir.
1953
Check Treatment

*1 Company, Products Manufacturing Radio 146; Automatic Inc., Research, Inc., Hazeltine Company, v. L.Ed. 339 U.S. costs rests in

The matter court. We think discretion of sound divide discretion not an abuse of (cid:127)was

n costs. was em conclusion Moreover, this the de to which judgment

bodied appeal. It there no prosecuted has fendant the decision. challenge cannot

fore District Court judgment

.affirmed. DEBROW. STATES

UNITED WILKINSON. STATES

UNITED IER. v. BRASH STATES

UNITED v. ROGERS. STATES

UNITED v. JACKSON.

UNITED STATES and 14091.

Nos. Appeals, Court of

United States Circuit. Fifth

April 10, 1953. 15, 1953. Granted

Writ of Certiorari

See 73 S.Ct

** * having taken an oath before a competent tribunal, to wit: a subcommittee of the Senaté Expenditures Committee on * Departments Executive unlawfully, that he truly, would testify knowingly willfully, contrary oath, said state a material matter which * * * he did true, not believe to be in Gen., Brooks, Atty. Special Ben Asst. to violation of 18 U.S.C. 1621. Section 1621 Brown, Atty., Jackson, Joseph § E. U. S. provides pertinent part: Atty. Miss., McInerney, Asst. M. James Atty., Gen., Hauberg, Asst. U. S. Robert E. “Whoever, having taken an oath be Miss., H. Dubrovsky, Atty., Jackson, Felicia tribunal, officer, fore a or Washington, C., Department D. Justice, person, any case in which a law of appellant. for the United States authorizes an oath to well Wilkinson. Franklin, Jackson, Miss., Johnston, No. 14090: ger T. No. 14088: ashi No. 14089: Todd, Jackson, Miss., No. 14087: Ben F. Ben F. Ben F. Ben F. Edwards, Jackson, Adam, Gulfport, Jr., Cameron, Meridian, Miss., e Cameron, Cameron, Cameron, Biloxi, . Meridian, Miss., Meridian, Miss., Meridian, Miss., for Curtis Ro Miss., Albert Miss., for for Henry s r Roy Miss., James . Debrow F. Sidney J. . Allan B.E. Br Bid Ed H. . the essential elements of in which he inter síate an offense under separate Prior to trial [*] lieve to such material position, scribed, any clare, depose, be that said administered, alia, written other to be [*] " motion to dismiss the indictment oath states or subscribes matter which that “said' indictment or certificate true, willfully - laws of the United true, indictment “does not testimony, declaration, each of the that he will certify truly, guilty § - on the does not be the crime of appellees testify, him sub contrary perjury, or that grounds, fails to States,”' allege any de de filed perjury, and allege not- do.es essential and No. 14091: sufficient, facts to a verdict of Cameron, Meridian, Miss., Ben Will F. J. guilty, allege and does not elements of the Wells, Miss., Young Jackson, S.Will sufficiently n advise defendants for Forrest B. Jackso his defense.” The motions came on for HUTCHESON, Before Chief and hearing and the District in an un Judge, RIVES, judges. reported BORAH and Circuit opinion covering the five cases dismissed the indictments the single on- BORAH, e. Judg Circuit ground they common to. state failed - all the essential appeals perjury elements of a separate These five ' charge in that the indictments common cases each which the -set Dis- out who administered the alleged sustained a oaths trict Court motion to' -dismiss conclusion indictments reason of its failure- .elements,- acted in to set forth all the essential administration perjury charged. the. of such oath. Judgments crime dismissal .opinion entered in they will covered one were each case and appealed. the Government has have most matters in common. July separate On In concluding that the indictments-should returned, against were appel- each. of the the District Court relied dismissed. , lees in the District great S., Court for measure on Hilliard U. 5 Cir. Southern District Mississippi. Each 24 F.2d wherein prin this guiding that “the cipal was announced: “In charging perjury prescribe which does'not necessary, to of U.S.C. sufficient, is also but it it is precise language in the averment forth the substance set taken, is to couched. the oath whom to show before *3 taking it the the averment that with officer in the Hil that court It is true this (Emphasis if’. administer authority the, there question case did consider liard to avoid seeks supplied.) The Government 5396, 18 presented light of R.S. the arguing, by language this impact the was ex because statute C. this § dicta; (2) pronouncement (1) that this the pressly repealed prior the return of the merely embodied that the present argument the is made indictments 5396, U.S.C. § R.S. substance of not case did an that the decision this reached result supports the no more applica presently principle of nounce a law expressly which was docs this statute than of Crimi 7(c) Rule Federal Rules ble under 862; 80 Stat. repealed by Congress, 62 re nal This old now Procedure. 25, 1948; Sess., Cong., 2d c. pealed purpose. was a useful It served did not case Hilliard finally (3) that the require passed many of the to eliminate may be which law announce a perjury indictment which ments of were applicable under Rule presently considered exacting providing that too considered Procedure. of Criminal Rules 7(c) Federal dispense may with the recital indictments sound. contentions

None of these specified proceedings that were records necessary indictment set case held to be In the Hilliard at common law often took an only the defendant parts not that Markham v. Unit forth the indictment. Court; District averred L. oath before the ed administered in require was that the oath despite minimum further 441. But its Ed. Williams, duly “the R. open by Edwin court plainly ments this that appointed clerk of the said constituted “set forth the substance indictment should attacked defendant, court.” The indictment was charged upon the of the offense ground, among others that it court, and before properly show the defendant was that taken, averring whom the oath was rejecting this contention that sworn. In person competent authority have court inadequate was court so may to' the same It administer *.” because the indictment contained the es- rightly repeal said its not therefore that person sential of the name of the averment destroyed requirements which form administering person that oath and this regard basis of the Hilliard decision. But appointed duly was the of court. clerk repeal less of this statute its it still re requirement mains a fundamental Bickford, of United case sought of the crime essential element upon appellant 168 F.2d which re charged must be in the indictment stated slightest against does militate lies in the and so stated that defendant from the holding the Hilliard case that was allegation of the indictment under necessary validity of to'the upon stand what is called to defend. specify that it the name and This the Amendment of the federal Sixth It decid oath. requires. constitution only case, ed that where as the in dictment informed the U.S.C., defendant that the Rule 7(c), relating to court, oath was administered generally, provides clerk “the implicit that it was sufficientbecause it was the information indictment or shall be a pleaded plain, from the facts officer concise and definite written statement ad possessed constituting the of ministering the oath was in of the essential facts fact requisite authority, charged.” there was no This Rule like fense its forerun spell R.S.5396, simplify ner, designed need to it out further as the in averments requirement eliminating unnecessary phra- substantially made dictments satisfied 953], deputies [now § 28 U.S.C. vests and their with all clerks administer oaths. many upon needlessly called seology burdened to administer the oath. practice. It inform defendants that the indictments under former competent tribunal, that this taken and it never intended before a a sub- does not modify the committee fundamental of the Senate Committee on rule should alter Expenditures, requirements requires of indictments. etc. functions and element of the indictment shall contain a writ- Every or essential ingredient definite ten facts, charged must still be statement of the essential con- sought to be S., stituting para- alleged U. the offense indictment. Wilson v. provisions mount of the Sixth Amendment certiorari denied 158 F.2d *4 are “that 1095, prosecutions, all criminal the 850, 91 L.Ed. 1294. 67 S.Ct. * * * enjoy accused right shall the to requirements and strict for- The fact that be informed of the nature and cause of the pleadings under the criminal of malities accusation.” We think that it is essential by have been common law rules modified to inform the accused whom it is justify rules does not practice and modern sworn, that he was dis- either al- of substance from matters omission of closing person the name of the administer- long legations It has an indictment. of oath, the ing capacity, his or official and in- an been in the federal courts that settled possessed requi- he was in fact of the of statute is the the dictment in authority. site are matters These of sub- But ordinarily where the sufficient. stance which affect the substantial of rights of the of- essential element itself an omits the apparent It to accused. is us as it was implication the it fense includes Supreme the to that there Court2 can be particulars to and descend indictment must perjury no oath, conviction of “unless the every ingredient of constituent charge regard perjury to charged, which the is composed. the in- is crime the taken having before officer some an of kind fact nec- material sets forth dictment due administer the oath.” And with rea- essary inform the to borrow language Judge of Hutcheson in certainty the nature cause 'and sonable Grimsley Cir., States, United en- him so as to against of the accusation 509, 511: proof “as an indictment without defense, him- make his and avail able him to conviction, proof cannot a so with- acquittal pro- for self his conviction out hardly indictment cannot.” There is prosecution against another tection say need to more. is sufficient. is, The judgments each of are, and them do under review The indictments affirmed. of the the words an offense allege appli refer although they do to the RIVES, Judge, dissenting. Circuit not at These indictments do cable statute. I tempt against Henry officer or name Count of the person typical the Senate subcommittee Debrow set out in the footnote1 is whom Hall, Mississippi, inquiring and United States v. mat- pending L.Ed. 97. then there ter before the said subcommittee which a law of the GRAND JURY CHARGES: “THE United States authorizes that an oath be day tbe “1. That on or about 9th administered, testify truly, that he would Jackson, April, 1951, at within the knowingly unlawfully, wilfully, Mississippi, District of Southern contrary oath, to said state a ma- DEBROW, HENRY matter which terial believe herein, having say: duly true, the defendant taken competent tribunal, place before a “2. That at the time and afore- said, subcommittee of to wit: a tbe 'Senate the said Senate in- Subcommittee Expenditures quiring conducting on Committee the Exec- as aforesaid was a Departments study investigation appli- known as utive the Sub- of whether duly appointments Investigations, committee on cants to offices and places government created authorized subcommittee of under conducting being States Senate and were United of- States had been United hearings per- ficial Southern District solicited and numerous “having All It language, five cases. true that these duly taken single com- an oath before a tri- five are dismissed * * * conclusion, author- bunal states while ground the name mon requires the oath a “statement of es- ity constituting sential perjury elements essential facts ”, seems to me indictments. should stated the real inquiry meaning lies in the hold deference, submit With I word “essential” in that rule. contrary extremely and is ing technical pertinent Fed spirit letter The roots that “essen eral Criminal Procedure.2 Rules of tial facts” must be stated in Constitution, Statutes, Amend are imbedded in the Revised Old Section particulars ments V and VI. A bill of can Hilliard v. Unit- under which U.S.C.A. fatally decided, not be used to cure an indictment States, ed States, defective, ;862 80th Con- repealed. 62 Stat. has been Jarl It F.2d cf. Williams v. United gress c. 2nd. Session *5 employed be by the new rules and but replaced had been details, pertinent everything to discover all 7(c). particularly but the “essential Rosen v. United facts”. 1, supra) (see footnote If indictment L. (substantially is compared with Ed. 606. copied opinion), it will be seen main in merely What facts are “essential”? Is the then that contains rule, holds, present majority considerably statute but as the language of the particulars more, must to proper.3 “the indictment descend was and like to make tion. Would up brow, you said, being falsely duly appearing as a witness before the respect to the aforesaid material matter fected the as follows: state mine whether tion with ties, gaged ing appointment said the their ing such Senate agencies sons make tions as a condition eration said officesand “SENATOR “MR. “3. glad Professor such just improper and ‘Providing you within the That at the under oath therein, political Subcommittee to.’ before DEBROW: in return identity appointments, and as a result knowing HENRY DEBROW operation of the United States. been violated Hill said you and influence thousand places HOEY: said Subcommittee with contributions and State of thereto; of make it for these time and corrupt situation was. laws of precedent are and then aforesaid, promises and as departments extent fellows, such dollar Go applicants present, of * Mississippi me, activities af- place On such activi- the United ahead and there to receiv- contribu- to deter- a consid- to which ‘Mr. De- obtaining me?’ I would testified connec- to I will afore- dona- seek- way use en- to I the statute applies that an indictment in rights written ness in administration and the elimina- riance which does not affect substantial to inal tion of shall constituting mittee make the contribution for him. of the [*] for the defendant that he tee, the Jackson, knew thousand dollar contribution to the Com- “There “Rule “Any “Rule “Rule “The indictment or “These rules are intended to “4. [*] secure way defendant, proceeding. Professor Hill did not state to the Title abe [*] That shall where the words of the Mississippi just unjustifiable expense error, is statement 52(a) Mississippi, to up believed was untrue only simplicity determination of requested to the the aforesaid plain, defect, sufficient. The as U.S.C.)” one disregarded.” he then would exception Democratic Commit- concise and definite Century Building, irregularity or va- the essential facts shall be construed see the the information procedure, like to make and testimony defendant every there well exception members charged. the rule that on provide delay.” crim- (Sec. fair- to at of ingredient Williams, Cir., have est constituent so, composed”? we ablished the new that under the which crime is an indictment rules the re still the technicalities meets enmeshed quirements rules Sixth Amendment su common law pleading, the.new .and. t f Holtzoff, see ficien purpose, failed have of their Procedure, 3 Reform of Criminal Federal. applied When that test is indict to these to me that seems F.R.D. 448-449. It ments, argument it seems too clear for be stated required to facts”, the “essential each cause defendant :was of the informed all of the indictment include do not nature, ..thq he with which by' Gov- necessáry proVéd details properly so that he could meet ernmént, as will fact's such prepare .defense, his and if trial ensued Amendment requirement of the Sixth try attempt him were thereafter made the ac- prosecutions, “In all criminal that' could, again charge, suc on the '* * right enjoy'the shall' cused interpose cessfully jeopar a,plea former of the 'cause nature and be informed dy. accordance charges, The ' *' accusation; *.” provisions with one the alternative of the na U.S.C.A., informed “A defendant is statute, 1621, that the against ture and cause accusation taken tri oath was “before a , de him if the indictment contains Further, charges bunal”. as will scription of the offense my “duly” (a taken not noted fact defense, and to him make his enable brothers). has said Supreme any fur 'of judgment bar plead the that, means, proper ‘duly’ “The"word *6 crime.” same prosecution for the ther way, regularly, according law.” dr 29, 34, States, 161 U.S. Rosen v. United 233, 236, Perkins, Robertson v. 9 129 U.S. 435, 606. 434, L.Ed. 16 S.Ct. 40 280, 686; 279, 32 S.Ct. L.Ed. followed Co., v. Firemen’s 7 Zechiel Fund Insurance States, 227 Bartell United also v. See Cir., “Duly 27. means 61 sworn” a 383, 583. 431, L.Ed. F.2d 427, 33 S.Ct. 57 swearing & to law. according 13 Words n Starks, D.C.S.D. States I United v. 5 Phrases, p. authority 627 The name 43, Holtzoff stated Judge N.Y., F.R.D. 6 of the officer administered the oath sufficiency of an present test proof details which are matters as follows: indictment concerned, any trial. So far as indict- tests that an are two “There - Senator, United States a member of the First, apprise must meet: must ment subcommittee, to administer specific offense witnesses, 191; 2 oaths to U.S.C.A. Sin charged.. he is with which States, clair v. United 279 49 indictment test second is that The 268, holding 73 L.Ed. 692. Under the sufficiently definite order must be Bickford, Cir., States v. 168 in United 9 later the defendant is that if that, sufficiency F.2d of an averment will with the same offense he oath was some Sena “the interpose plea of position to a double subcommittee”, tor, a member of the with jeopardy.” The out could riot debated. naming'him, carried, “duly” meaning. of decisions long-line to me that-a It seems word probability, in United States the defendants knew culminating Court4 In all of this 479; elements 189 F.2d States, Sutton not contain all the essontial cf. v. United do States, Cir., 157 offense”. Norris v. United F.2d 663. Cir., also Sut- F.2d See 810. that, 5. Circuit has “It -Sixth held Cir., States, F.2d United ton is not must 661, 663. allegation contain' by that an act done corporation Among others Norris v. United was authorized its see 4. agents.” Cir., 808, 810; States, Wilson Milk officers Universal States, States, Service v. Bottle United 188 F.2d United v. 662; Lynch United not, they could acted. which Senator by filing a motion prior trial

ascertain particulars. agree I cannot bill of of this claim the omission with the difficult, more their defenses

detail made way. prejudiced the defendants respectfully

I, therefore, dissent. T.

HAMMOND v. C. I. FINANCIAL CORP. 189,Docket 22521.

No. Appeals Circuit. Second

Argued March April

Decided