Harris v. United States, 11346.

• Decision Date: 26 May 1939
• Docket Number: No. 11346.,11346.
• Citation: 104 F.2d 41
• Parties: HARRIS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

104 F.2d 41 (1939)

HARRIS v. UNITED STATES.

No. 11346.

Circuit Court of Appeals, Eighth Circuit.

May 26, 1939.

William L. Vandeventer, of Springfield, Mo. (Phil M. Donnelly, of Lebanon, Mo., on the brief), for appellant.

Otto Schmid, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for the United States.

Before SANBORN and THOMAS, Circuit Judges, and SULLIVAN, District Judge.

SULLIVAN, District Judge.

The appellant was convicted in the lower court upon the fourth count of an indictment containing eight counts. The odd numbered counts alleged that the defendant was Assistant Postmaster at Lebanon, Missouri, and while acting as such, did embezzle a specified amount of money belonging to the United States, in violation of Section 355, 18 U.S.C.A. Counts two, six and eight charged him, while being Assistant Postmaster, with making certain false entries in records of the Postoffice Establishment, knowing the same to be false, with the intent to mislead and defraud the Postoffice Establishment of the United States, in violation of Section 189, 18 U.S.C.A. Count four of the indictment, the one under which he was convicted, is attempted to be drawn under said Section 189.

At the close of the government's evidence, the defendant demurred to the evidence under each count of the indictment, and requested a directed verdict. The demurrer and request were overruled except as to count one, on which count the demurrer was sustained. At the close of the evidence he again demurred and requested a directed verdict as to the remaining counts, with a like ruling by the court thereon.

The jury returned a verdict of guilty as to count four, and a verdict of not guilty as to the remaining counts of the indictment.

The defendant appeals from the judgment of conviction on count four, and assigns as error the failure of the trial court to sustain the demurrer and request for a directed verdict of not guilty at the close of the government's evidence, and at the close of all evidence in the case. He assigns other matters occurring at the trial as errors, but it is unnecessary to consider them, in view of the conclusion this court reaches as to the sufficiency of the count under which he was convicted.

The evidence shows that each count of the indictment was based upon alleged irregularities relating to circulars sent out by what is known as "non-metered mail". Postal regulations provide that any person desiring to mail out circulars of at least two hundred pieces, or of any quantity of not less than twenty pounds, can, for $10, purchase a permit which entitles him to send out the circulars without stamps affixed, but each circular must bear, in the upper righthand corner, a printed block stating the number of the permit that had been issued to the mailer, the name of the postoffice from which the permit was issued, and reference to Section 562 of the Postal Laws and Regulations, and the words and letters, "U. S. Postage Paid."

The procedure under the postal regulations was for the mailer of circulars, at the time he presented them for mailing, to fill out what was known as a "Statement of Mailing of Non-metered Matter", the Statement to be prepared wholly by the mailer in ink and to accompany each mailing, in accordance with the instructions printed on the face of the Statement of Mailing and furnished to prospective mailers by the Postoffice Establishment. However, the employees of the Lebanon, Missouri, Postoffice did not follow the regulations, and it was the practice in that office, when a mailer presented his circulars for mailing, for a clerk in the Postoffice to weigh them in and make a notation of the weight on a scratch pad. If more than one parcel of circulars were brought to the Postoffice by the mailer, the different weights would be noted on the scratch pad, the total weight ascertained and the amount of postage determined. The clerk would receive the circulars for mailing and the money due for postage, but he would not require the mailer to fill out a Statement of Mailing, nor would he execute and deliver to the mailer a receipt for the postage paid.

The sufficiency of the count was not formally challenged in the trial court by demurrer or motion to quash, although it may be said to have been indirectly attacked by the demurrer to the evidence and motion for a directed verdict at the conclusion of the government's evidence, and again at the close of the proof in the case. It is the contention of the appellant that the charge in the questioned count and the proof of making a false statement of mailing was insufficient, under the applicable statute. The sufficiency of said count has been fully argued by the parties in this court in their briefs and oral arguments.

When an indictment contains averments necessary to constitute an offense, even though such averments are stated loosely, or without technical accuracy, it is the general rule under such circumstances that where there is a failure on the part of the defendant to attack such an indictment by demurrer or motion to quash, the omissions are cured by the verdict. Musey et al. v. United States, 5 Cir., 37 F.2d 673. However, where the challenge to the indictment is based upon an omission in the averments thereof of an essential element of the crime, objection thereto is not waived (Berry v. United States, 9 Cir., 259 F. 203); it may even be asserted in this court for the first time. Dropps v. United States, 8 Cir., 34 F.2d 15; Nicholson v. United States, 8 Cir., 79 F.2d 387; Danaher v. United States, 8 Cir., 39 F.2d 325.

The statute enjoins the courts from setting aside judgments grounded upon indictments defective or imperfect in matter of form only, and which shall not tend to the prejudice of the defendant (Section 556, 18 U.S.C.A.), but the essential elements of the statutory offense must be set out in the indictment. These "are matters of substance, and not of form, and their omission is not aided or cured by the verdict". United States v. Hess, 124 U.S. 483, 8...