An indiсtment was returned against this defendant on September 28,' 1956. Two days later, on October 1, on motion оf the United States Attorney, an order was entered stating that there was reasonable grounds to suppose that defendant wa’s not competent to stand trial, and 'that he should present himself to a named psychiatrist for examination on October 10, 1956, all as authorized by Title 18 U.S.C.A. § 4244.
That section рrovides that at any time after arrest and prior to sentence, on the motion of the United Stаtes Attorney ,that there is reason to believe that the defendant “charged with an offense аgainst the United States” may not be mentally competent to assist in his own defense, the court shall оrder a psychiatric examination; and that “If the report of the psychiatrist indicates * * * such mеntal incompetency in the accused, the court shall hold a hearing •* * * at which evidencе as to the mental condition of the accused may be submitted”. In the case at bar the psyсhiatrist conducted an examination and reported to the court, using the technical and (to the legal mind) esoteric language of his profession. In fact, so cryptic was the report that counsel were unable to; agree on whether nr not it “indicates a state of mental inсompetency”. Defendant says that it does not so indicate and accordingly no further heаring is warranted; the government contends the reverse; and the court agreed that the partiеs had reason to differ on the question.
While court and counsel considered this situation, two further motions were made. On December 18,1956, defendant 'moved to vacate the order of October 1, 1956, and counsel for defendant stated orally that he felt the court had no jurisdiction to enter it. Thе order was not vacated since it had already been executed, but defendant was given рermission to file briefs stating his objections. Then on January 2,1957, the government .filed a motion asking for an early hearing on defendant’s competency to stand trial. Briefs have been filed on all questiоns.
Defendant contends that the court has no authority to proceed further (and had none in thе beginning) under section 4244 for the reason that the indictment fails to state an offense against the Unitеd States. If this be true, the power of the court to act must certainly fall. The power under which а hearing may be held and a commitment made is “the power to prosecute for federal offenses.” Greenwood v. United States, 1955,
An examination of the indictment to determine whether a federal offense is charged does not require a prior finding as to defendant’s competency. The court may and should dismiss the indictment on its own motion if it is insufficient, Fed.Rules Crim.Proc. Rule 12(b) (2), 18 U.S.C.A; In this case defendant’s counsel, has urged the point in his brief, which may bе treated as a motion to dismiss.
*77 This indictment charges a violation of Title 18 U.S.C.A. § 871 which provides fine or imprisonment or both for one who makes “any threat to take the life of * * * the President of the United States”. It is alleged that the threat was accomplished by posting .in a public place on twо occasions (Counts I and II) a paper stating “There .can be slain no sacrifice to God more acceptable than an unjust President”.
That this is not a threat against the life of the present ■ President of the United States is apparent. According to Webster, a “threat” is “the expression of an intention to inflict evil or injury on another”. The legal definition goes further: “A threat is an avоwed
present determination or intent
to injure presently or in the future”. United States v. Metzdorf, D.C.Mont.1918,
In the light of the above discussion, Count III is manifestly insufficient. It alleges the mailing of a writing as follows: “The officials who aught (sic) to be arrested and shot are protected! There can therefor be no respect for any law or its Officers 1 ”
The indictment fails to state an offense against the United States under Title 18 U.S.C.A. § 871 and will be dismissed. This court accordingly has no power to proceed under Title 18 U.S.C.A. | 4244.