On Mаy 6, 1955, the Grand Jury returned a true bill against the defendant, charging him with violating Sec. 111, Title 18 U.S.C.A. The indictment consists of one count and reads as follows:
“On or about the 3rd day of May, A.D., 1955, in the State and Judicial District of Vermont, Manuel S. Mil*487 ler did forcibly assault, resist, oppose, impede, intimidate and interfere with Dewey H. Perry, United States Marshal within and for the District of Vermont, while engaged in the performance of his official duties, and in the commission of such acts did use a deadly and dangerous weapon; in violation of Section 111, Title 18, United States Code.”
A motion to dismiss the indictment was filed on May 20, 1955. A hearing was held in the United States District Courtroom in Brattleboro, Vermont, on May 25, 1955.
Thе defendant claims that the indictment should be dismissed because it fails to charge a specific intent and because it fails to allege or identify the process or duty United States Marshal Dewey H. Perry was serving or performing on the occasion of the alleged criminal offense of Manuel S. Miller. After a carеful examination of the statute in question, the cases thereunder and the Federal Rules of Criminal Procedure, 18 U.S.C.A., I find that neither argument presented by the defendant has merit.
The defendant’s first contention is that the indictment is fatally defective because it does not charge that Miller specifically intended to do what it is аlleged he did in the indictment.
The cases cited by the defendant to support this contention were decided before the adoption of the Federal Rules of Criminal Procedure. F.R. 7(c) does not require the particularity in pleading which was necessary before the adoption of the Federal Rules.
In the case of Parsons v. United States, 5 Cir.,
“Thе cynically technical approach which formerly enshrouded the consideration of even the plainest and simplest indictments, and, in many instances, made a mockery of simple justice, no longer governs their consideration. On the contrary, the trial court and this court are enjoined to, and do, exаmine into, and determine, the validity of attacks •upon indictments, especially of this kind, from the broad and enlightened standpoint of common sense and right reason rather than from the narrow standpoint of petty preciosity, pettifogging, technicality or hair splitting fault finding.” Parsons v. United States, 5 Cir.,189 F.2d 252 , 253.
The fact that the indictment fails ta specifically allege that the defendant specifically intended to do the acts complained of does not make the indictment fatally defective.
The defendant secondly contends that the indictment is fatally defective because it does not identify the
The identity of the process being served by the United States Marshal and the duties the United States Marshal was performing might be proper subjects for a Bill of Particulars but are not valid reasons for dismissing the indictment.
On the basis of defendant’s arguments, the motion to dismiss the indictment should be denied, because it is not necessary that the indictment charged that he specifically intended to do the act complained of, or that it showed what type of process the Marshal was serving.
However, the defendant should not be subjected to prosecution under a fatally defective indictment merely because he failed to make the right objеction at the right time.
Under the power vested in me by F.R. 12(b) (2), I have thoroughly examined the indictment and the law applicable thereto on my own motion so that no injustice will be done.
An indictment, so long as it adequately apprises the defendant of the charge against him and is specific enough to prevent double jеopardy, will not be dismissed unless it fails to contain the essential elements of the offense charged.
In the case of United States v. Debrow,
“ ‘The true test of the sufficiency of an indictment is not whether it could have been more definite and certain, but whether it contains the elements of the offense intended to be charged, “and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken аgainst him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” Cochran & Sayre v. United States,157 U.S. 286 , 290,15 S.Ct. 628 ,39 L.Ed. 704 .’” United States v. Debrow,346 U.S. 374 , 376,74 S.Ct. 113 , 114.
In United States v. Williams, 5 Cir.,
“The indictment must contain a definite statement of the essential facts constituting the offense charged. An indictment in the language of the statute is ordinarily sufficiеnt, the only exception being where the statute includes by implication an essential element of the offense. * * * A bill of particulars may make specific a statement that is too general, but it can not supply the*489 omission from an indictment of a fact that constitutes an essential element of the crime intеnded to be charged.” United States v. Williams, 5 Cir.,203 F.2d 572 , 573, 574.
In United States v. Debrow, 5 Cir.,
“Rule 7(c), 18 U.S.C., relating to indictments generally, provides that ‘the indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.’ This Rulе like its forerunner, R.S. § 5396, is designed to simplify indictments by eliminating unnecessary phraseology which needlessly burdened many indictments under the former practice. It does not and it was never intended that this rule should alter or modify the fundamental functions and requirements of indictments. Every ingredient or essential element of the offense sought to be charged must still be alleged in the indictment.” United States v. Debrow, 5 Cir.,203 F.2d 699 , 701, 702.
In light of these recent decisions, the sole question here is whether or not the indictment includes all of the essential elements necessary to constitute a violation of Sec. 111 of Title 18 U.S.C.A. If all those facts are stated, the indictment stands. If, however, an еssential element is omitted, the indictment must be dismissed.
The essential elements of Sec. 111 of Title 18 U.S.C.A. include: (1) forcible assault by the defendant; (2) on the United States Marshal; (3) while the Marshal is engaged in the performance of his official duties. All of these facts are alleged in the indictment. But there is one essential element thаt is missing. It is necessary that such an indictment allege that the defendant knew that the United States Marshal was, in fact, a United States Marshal. It should also allege that the defendant knew that the United States Marshal was engaged in the performance of his duties.
In Sparks v. United States, 6 Cir.,
“The counts charge appellant with the intent to obstruct Feild in the discharge of his official duty, and thus fairly charge appellant’s knowledge of Feild’s official status. The defect was one of form only.” Sparks v. United States, 6 Cir.,90 F.2d 61 , 63.
In the Sparks case, the indictment did charge that the defendant knew that the party attacked was a United States Marshal. In the case at bar, no such knowledge is charged in the indictment.
United States v. Combs, D.C.,
“The statute defining the offense charged, unlike Section 245, does not make such knowledge on the part of the defendants an element of the offense.” United States v. Combs, D.C.,73 F.Supp. 813 , 814.
The Sparks case relied on the case of Pettibone v. United States,
“It seems clear that an indictment against a person for corruptly or by threats or force endeavoring to influence, intimidate, or impede a witness or officer in a court of the United States in the discharge of his*490 duty, must charge knowledge or notice, or set out facts that show knowledge or notice, on the part of the accused that the witness or officer was such; and the reason is no less strong for holding that a person is not sufficiently charged with obstructing or impeding the due administration of justice in a court unless it appears that he knew or had notice that justice was being administered in such court.” Pettibone v. United States,148 U.S. 197 , 206,13 S.Ct. 542 , 546. (Emphasis added.)
The Combs case cites the case of United States v. Balint,
“Its manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, and if he sells the inhibited drug in ignorance of its character, to penalize him. Congress weighed the possible injustice of subjecting an innоcent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided. Doubtless considerations as to the opportunity of the seller to find out the fact and the difficulty of proof of knowledge сontributed to this conclusion.” United States v. Balint,258 U.S. 250 , 254,42 S.Ct. 301 , 303.
Justice Jackson in Morissette v. United States,
“It was not until recently that the Court took occasion more explicitly to relate abandonment of the ingredient of intent, not merely with considerations of expediency in obtaining convictions, nor with the malum prohibition classification of thе crime, but with the peculiar nature and quality of the offense. We referred to ‘ * * * a now familiar type of legislation whereby penalties serve as effective means of regulation,’ and continued, ‘such legislation dispenses with the conventional requirement for criminal conduct awareness of some wrongdoing.’ ” Morissette v. United States,342 U.S. 246 , 259, 260,72 S.Ct. 240 , 248.
The Court said that no line could be drawn between cases requiring a mental element and those which do not because the law is not static. However, the Ba-lint case should not be extended to common law crimes without an explicit indication of such extension from Congress. The crime of obstructing justice is of common law origin.
There is no indication that the members of Congress felt that it would be un
The Government contends that Parsons v. United States, 5 Cir.,
Indeed, a violation of Sec. 111 of Title 18 U.S.C.A. would occur only when the defendant knew these facts. A man’s home is still his castle and he has a right to protect that home against other citizens. He violates this law only when he attacks a United States Marshal, knowing him to be such, and knowing him to be engaged in the performance of his duties. One'of the purposes of the Government in issuing badges to the Marshals and of the courts in issuing orders to the Marshals in written form is so that they may inform fellow citizens of their officiаl positions and their duties before they act.
A person would not violate Sec. 111 of Title 18 U.S.C.A. if he prevented an unidentified Marshal, who was unknown by him to be such, from coming into his home. Likewise, a person would not violate Sec. 111 of Title 18 U.S.C.A. if he did not know that such Marshal was in the performance of his official duties.
I thereforе hold that the indictment against defendant Miller is fatally defective, because it does not allege the following essential facts: (1) that defendant " Miller knew • that Dewey H. Perry was a United States Marshal, and (2) that defendant Miller knew that said Marshal was in the performance of his official duties.' The indictment must be dismissed.
Notes
. F.R. 7(e): “Nature аnd Contents. The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviсtion if the error or omission did not mislead the defendant to his prejudice.”
. F.R. 12(b) (2) reads in part: “ * * * Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding.”
,. “ * * * the obstruction of the administration of justice is declared to be an indictable offense under the common law * * * ” 39 Am.Jur. 502, Obstructing Justice, Sec. 1.