United States v. Drexel
56 F.2d 588
2d Cir.
1932
Check Treatment
PER CURIAM.

Thе indictment, so far as material, read as follows: “The defendant * * * did unlawfully * * * receivе and conceal * * * a certain motor vehicle to wit: a Roosevelt Sеdan, Motor Number 910630, Serial Number 709882, which said motor vehicle had theretofore been stolen at the City of Philadelphia, State of Pennsylvania, and transported * * * in interstate commerce.” It will be observed that, although these words allege that the еar had been stolen, they do not allege that it was '(moving as” or “a part of” оr that it “constituted” interstate commerce as the statute required. Section 408, title 18, U. S. C. ‍‌‌‌​​‌‌​​​​​‌‌​‌​​‌‌​​‌‌​‌‌‌‌​​​​​‌​‌‌​​​​​​‌‌‌​‍(18 USCA § 408). The more natural way to read the language undoubtedly is that the car “had been transported,” rather than that it “was being transported,” in interstate commerce; and it must be confessed that a strict construction would make the indictment defective, since it was an essential element of the crime, one indeed without which the statute would extend beyond its constitutional scope, that the ear should not hаve lost its character as a part of interstate commerce. If so сonstrued, an error arises on the face of the record, which was not cured by failure to object in limine. U. S. v. Carll, 105 U. S. 611, 26 L. Ed. 1135; Shilter v. U. S., 257 F. 724 (C. C. A. 9); Dropps v. U. S., 34 F.(2d) 15 (C. C. A. 8); Hardesty v. U. S., 168 F. 25 (C. C. A. 6); Grimsley v. U. S., 50 F.(2d) 509 (C. C. A. 5). Moreover, no exception was necеssary to ‍‌‌‌​​‌‌​​​​​‌‌​‌​​‌‌​​‌‌​‌‌‌‌​​​​​‌​‌‌​​​​​​‌‌‌​‍raise it; it is open on mere appeal. Nalle v. Oyster, 230 U. S. 165, 33 S. Ct. 1043, 57 L. Ed. 1439; Brown v. Carver, 45 F.(2d) 673, 674 (C. C. A. 2).

Yet the purpose of the allegation is entirely apparent; it was to charge the defendant with the offense of stealing a car which was part of interstate cоmmerce, and practically he was adequately advised ‍‌‌‌​​‌‌​​​​​‌‌​‌​​‌‌​​‌‌​‌‌‌‌​​​​​‌​‌‌​​​​​​‌‌‌​‍of what he must meеt. The defect was therefore rather one of form than of substance under section 556 of title 18, U. S. Code (18 USCA § 556), and falls within such cases as Bloch v. U. S., 261 F. 321 (C. C. A. 5), and Grandi v. U. S., 262 F. 123 (C. C. A. 6), not within Grimsley v. U. S., 50 F.(2d) 509 (C. C. A. 5), where the indictment was wholly bare of the necessary allegation, though guilty knowledge had been proрerly laid. At any rate it is within section 391 of title 28 of the U. S. Code (28 USCA § 391), for, if not strictly formal, it was cеrtainly a “technical defect” which did not “affect ‍‌‌‌​​‌‌​​​​​‌‌​‌​​‌‌​​‌‌​‌‌‌‌​​​​​‌​‌‌​​​​​​‌‌‌​‍the substantial rights of the parties.” The pleader had been inept in expressing his meaning, but that meaning was cleаr, and the fact was proved at the trial beyond peradventure. The defendаnt, whether guilty or not, had certainly received the car at the end of its interstatе journey.

Moreover, even if we are wrong in both respects, there is no assignmеnt of error to cover the supposed error. There are indeed several directed to the denial of a motion to dismiss the indictment at the close of the evidence, and these perhaps are couched broadly enough to raise the point, if the motions had themselves done so. They did not; they were to dismiss the indictment because of its supposed failure to allege that the ear ‍‌‌‌​​‌‌​​​​​‌‌​‌​​‌‌​​‌‌​‌‌‌‌​​​​​‌​‌‌​​​​​​‌‌‌​‍had been stolen; that allegation it contained. The court’s rulings were therefоre correct, for the defendant had not complained of the failure to allege that the car was still a part of interstate commerce at thе time. True, the difference was purely verbal and of the merest form'; but then the objеction is itself equally insubstantial, and it is reasonable to meet technicality with technicality that the substance may prevail.

The other points are of slight importance. There was a variance between the car number as alleged and as proved; the difference, according to the owner’s testimony, relating only to the motor number, which was in fact S10630, instead of 910630, as alleged. This is too trivial for discussion. The court admitted evidence of the defendant’s knowledge that other ears which he received had been stolen. This was competent [Katz v. U. S., 281 F. 129 (C. C. A. 6)] under very old lаw. Indeed, it was against receivers of stolen goods that the whole doctrine hаd its origin, and it was at one time argued that it should be confined to such cases. So fаr as the charge was inadequate, or misleading, which we do not intimate, it is an answer that the defendant made no effort to correct it, as the judge would almost certainly have done had his attention been called to it. The defendant’s guilt was plainly for the jury, and he had a fair trial.

Judgment affirmed.