110 F.2d 1 (8th Cir. 1940), 11388, Hewitt v. United States

Docket Nº:11388.
Citation:110 F.2d 1
Party Name:HEWITT v. UNITED STATES.
Case Date:March 05, 1940
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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110 F.2d 1 (8th Cir. 1940)

HEWITT

v.

UNITED STATES.

No. 11388.

United States Court of Appeals, Eighth Circuit.

March 5, 1940

Rehearing Denied March 23, 1940.

Writ of Certiorari Denied May 27, 1940.

See 60 S.Ct. 1089, 84 L.Ed.-- .

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Ira B. McLaughlin, of Kansas City, Mo., for appellant.

Richard K. Phelps, Asst. U.S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U.S. Atty., of Kansas City, Mo., on the brief), for appellee.

Before STONE, SANBORN, and THOMAS, Circuit Judges.

SANBORN, Circuit Judge.

The University Bank of Kansas City, Missouri, on the morning of June 30, 1937, was robbed by armed men who stole $3,955.71 of its funds. It was a State bank and its deposits were insured by the Federal Deposit Insurance Corporation of the United States. For that reason, the United States was interested. By an indictment in two counts the United States charged James Harris, George Karatasos, William Newell, Orville Chester Garrison, Charlie Norvel Arthur and Paul M. Hewitt with having committed this robbery. The defendants other than Hewitt were all convicted either upon pleas of guilty or after trial. Hewitt had left the Western District of Missouri shortly after the robbery and was not arrested and arraigned until after his co-defendants had been sentenced. Upon his arraignment he entered a plea of not guilty and was thereafter tried, convicted and sentenced, and has now appealed.

The alleged errors upon which the defendant Hewitt relies for a reversal relate to (1) the indictment, (2) the order fixing bail, (3) the denial of his motion for a bill of particulars, (4) the denial of his motion for a continuance, (5) rulings upon evidence, (6) the court's instructions to the jury, and (7) the sentence.

The sufficiency of the evidence to sustain the conviction is not challenged. Two of Hewitt's co-defendants, Karatasos and Newell, were witnesses against him. Their testimony was to the effect that, while Hewitt was not personally present when the robbery was committed, he had suggested, planned and financed it, had supplied the automobiles and one of the guns used in connection with its commission, had shared in the loot, and had endeavored to assist his co-defendants to escape the consequences of their crime. They testified that Hewitt had given assurances to the actual participants that the robbery could be committed without fear of burglar alarms or of the local police. Assuming that the facts were as the government's evidence indicated them to be, the guilt of the defendant Hewitt was proved beyond the possibility of any doubt.

We consider the questions presented in their order.

The Indictment.

The indictment is based upon Section 588b, Title 12, U.S.C., 12 U.S.C.A. § 588b, which on June 30, 1937, provided:

'(a) Whoever, by force and violence, or by putting in fear, feloniously takes, or feloniously attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.

'(b) Whoever, in committing, or in attempting to commit, any offense defined in subsection (a) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not less than $1,000 nor more than $10,000 or imprisoned not less than five years nor more than twenty-five years, or both.'

Section 588a, Title 12, U.S.C., 12 U.S.C.A. § 588a, provides that the term 'bank' as used in Section § 588b, 12 U.S.C.A. 588b, includes 'any insured bank as defined in subsection (c) of section 264 of this title. ' Subsection (c)(8) of Section 264, 12 U.S.C.A., provides: 'The term 'insured bank' means any bank the deposits of which are insured in accordance with the provisions of this section; * * * .' Section 264

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creates the Federal Deposit Insurance Corporation to insure 'the deposits of all banks which are entitled to the benefits of insurance under this section. ' Every operating State or national bank which was a member of the Federal Reserve System at the time the section was enacted became automatically an insured bank. Sec. 264(e). Every bank not a member of the Federal Reserve System, which on June 30, 1935, was or thereafter became 'a member of the Temporary Federal Deposit Insurance Fund or of the Fund for Mutuals heretofore created pursuant to the provisions of this section,' also became automatically an insured bank. Sec. 264(f).

The government in the indictment undertook to charge the defendants in count one with having forcibly robbed the University Bank, a State bank the deposits of which were insured by the Federal Deposit Insurance Corporation of the United States, and in court two with having, while committing the robbery, put the lives of persons in jeopardy by the use of dangerous weapons. The indictment was defective in that in the first count the bank was alleged to be 'a member of the Federal Deposit Insurance Corporation of the United States ', and in the second count was alleged to be 'a member of the F.D.I.C. of the United States. ' The indictment should have alleged in each count that the bank was a State bank the deposits of which were insured by the Federal Deposit Insurance Corporation of the United States. It is the defendant's contention that these defects in the indictment were fatal and that the demurrer to the indictment should have been sustained. The government argues that the defects were to be regarded as formal and technical and nonprejudicial. Sec. 556, Tit. 18, U.S.C., 18 U.S.C.A. § 556.

Speaking with precision, the Federal Deposit Insurance Corporation has no members. It has stockholders (United States and Federal Reserve Banks), Sec. 264(d) and it has insureds, Sec. 264(e) and (f). In practical effect it is a mutual insurance company set up by the government, to be supported by assessments levied upon insured banks. Sec. 264(h). The insured banks may be regarded as members of this insurance corporation in much the same way and to much the same extent as persons insured in a fraternal benefit society or in a mutual insurance company are considered and commonly referred to as members of those organizations. The banks are members of the Federal Deposit Insurance Corporation in the sense that their deposits are insured therein and that they are liable for assessments, and that through the medium of the corporation they furnish each other's depositors protection against losses. As a practical matter, no one was, and no one could have been, in any doubt as to what the government meant by the allegation in the indictment that the bank was a member of the Federal Deposit Insurance Corporation. The defendant was in no doubt as to the nature of the charge that was made against him. In his motion for a bill of particulars, made in advance of the trial, he stated 'that it is attempted to charge this defendant in both counts of the indictment found and filed herein with the crime and offense of bank robbery, said charge being based upon 12 U.S.C.A. § 588b, to which indictment, if the same be ruled sufficient, this defendant will plead not guilty.'

That the bank was insured by the Federal Deposit Insurance Corporation was, of course, an essential element of the offenses sought to be charged. 1 The complete omission of any allegation which might reasonably be construed to mean that the bank was so insured would be fatal under the rule announced by this Court in Shaw v. United States, 292 F. 339. If, however, the allegation that the bank was a member of the Federal Deposit Insurance Corporation may be taken to mean what it was intended to mean, and what everyone, including the defendant, understood that it was intended to mean, then it was merely a loose and inartificial form of alleging that the bank was an 'insured bank', and this defective averment would not render the indictment invalid, where no actual prejudice resulted

'The rigor of old common-law rules of criminal pleading has yielded, in modern practice, to the general principle that formal defects, not prejudicial, will be disregarded. The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain,

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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 against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.' Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 630, 39 L.Ed. 704; Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 480, 40 L.Ed. 606.

'Section 1025, Revised Statutes (U.S.C., title 18, Sec. 556, 18 U.S.C.A. § 556) provides:

''No indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.'

'This section was enacted to the end that, while the accused must be afforded full protection, the guilty shall not escape through mere imperfections of pleading. * * *

'It, of course, is not the intent of section 1025 to dispense with the rule which requires that the essential...

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