Morissette v. United States

• Decision Date: 05 February 1951
• Docket Number: No. 10974.,10974.
• Citation: 187 F.2d 427
• Parties: MORISSETTE v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

187 F.2d 427 (1951)

MORISSETTE v. UNITED STATES.

No. 10974.

United States Court of Appeals Sixth Circuit.

February 5, 1951.

Andrew J. Transue, Flint, Mich., Andrew J. Transue, Flint, Mich., on brief, for appellant.

Janet E. Kinnane, Bay City, Mich., Edward T. Kane, Detroit, Mich., Janet E. Kinnane, Bay City, Mich., on brief, for appellee.

Before ALLEN, MARTIN and McALLISTER, Circuit Judges.

MARTIN, Circuit Judge.

On this appeal from a judgment of commitment and sentence, the only significant issue is whether the district court erred in its interpretation of Title 18, section 641, United States Code Annotated, which provides: "Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; * * * Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both."

The appellant contends that, in order to constitute a crime, there must have been a felonious intent in his mind at the time he converted to his own use property of the United States located on premises leased by it. This argument was rejected, the district judge taking the practical and correct view that the statute means what it says and is violated when a person "knowingly converts to his use" government property. The facts of record cannot reasonably be controverted that the appellant knew what he was doing, namely converting to his own use property of the United States when he took and carried it away and subsequently sold it for his own benefit. In effect, he merely denies that he had an evil or felonious intent.

The further insistence is made that if appellant believed that the government had abandoned the property taken by him, he should not have been found guilty, though mistaken in his belief. The district judge charged the jury that there was no evidence of abandonment of the property by the United States, and that appellant's claim that the property had been abandoned constituted no defense in the circumstances.

The uncontroverted proof shows that appellant took from property leased by the government some three tons of used bomb casings, owned by the government, and sold them for approximately $84.

Briefly reviewed, the salient facts are that appellant, a junk dealer who also operated a fruit stand in the summertime, went on a deer hunt with his brother-in-law. They entered upon Oscoda Air Base which was leased by the United States from the Conservation Department and the Department of Agriculture of the State of Michigan. This military reservation was used as a practice bombing range and was in such use on the day of the trial.

In a statement voluntarily made to the Federal Bureau of Investigation, appellant related that he and his hunting companion did not get any deer, so they decided to make their hunting trip pay by loading up his two-ton truck with used bomb casings. Without permission of the Commanding Officer of the air base, or without permission of anyone representing the United States, appellant took and carried away from the government reservation, in two truck loads, some three tons of used bomb casings undeniably property of the United States. The used bomb casings were piled on the edge of a cleared-out range and were each about three and one-half feet long, eight inches in diameter, and when empty weighed around sixteen pounds. The Captain commanding Oscoda Air Base testified that he had never had authority to dispose of used bomb casings, and that appellant at no time had asked his permission to take any of them. Morissette admitted that he had received no permission to pick up the bomb casings and knew that they did not belong to him. After taking the used bomb casings to a nearby farm and crushing them, appellant loaded his loot into his truck. He carried the bomb casings to Flint, Michigan, and sold them there to a coal and iron company. He testified that the bomb casings were rusted and that he thought they had been abandoned. He emphasized that he took them in broad daylight and made no effort at concealment. After considerable hedging, he finally admitted under questioning by the judge that he knew the bomb casings were on government property when he took them.

The statute which appellant violated, Title 18, sec. 641, United States Code Annotated, condemns not only the embezzlement, stealing and purloining of government property, but also the knowing conversion by a person to his own use, or to the use of another, of anything of value belonging to the United States, or the sale or disposition without authority of any government property. The conversion to his use and the selling of the bomb casings without authority were, as appears from the record, knowingly done by the appellant.

Appellant's attorney urges that both the indictment and the statute require proof of felonious intent. We are unable to accept this interpretation as valid. As to the indictment, the federal courts long ago abandoned the course of reversing convictions for crime on the technical niceties of pleading. An indictment is sufficient which fairly apprises the defendant of the charge which he is to meet and enables him to prepare his defenses and, after trial, to stand against double jeopardy upon a plea of former acquittal or former conviction. This court has frequently stated the principle. Dowling Bros. Distilling Co. et al. v. United States, 6 Cir., 153 F.2d 353, certiorari denied 328 U.S. 848, 66 S.Ct. 1120, 90 L.Ed. 1622, rehearing denied 329 U.S. 820, 67 S.Ct. 29, 91 L.Ed. 698; Bogy v. United States, 6 Cir., 96 F.2d 734 (and cases there cited), certiorari denied 305 U.S. 608, 59 S.Ct. 68, 83 L.Ed. 387; Blum v. United States, 6 Cir., 46 F.2d 850. Authorities from other circuits are overwhelmingly to the same effect. See cases digested in 34 Federal Digest, Indictment and Information. See also Rule 7(c), Rules of Criminal Procedure, 1950 Revised Edition, 18 U.S.C.A., wherein, after prescribing the essential contents of a valid indictment, it is provided: "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 conviction if the error or omission did not mislead the defendant to his prejudice." The indictment in this case fully meets the test. Morissette was sufficiently apprised of the charge against him and could never again be convicted for taking the used bomb casings here involved and selling them as he did.

The statute in question, section 641 which consolidates sections 82, 87, 100 and 101 of Title 18 United States Code, 1940 Edition, is not limited in coverage to embezzling, stealing and purloining government property, but also blankets the knowing conversion of such property by anyone to his own use. It is not at all unusual in federal statutes to find that Congress has, in a single paragraph, defined separate and distinct crimes involving different elements.

Manifestly, the purpose of Congress in enacting section 641 was to afford added protection against the taking of government property. The word "or" as used in the statute evinces that purpose. If it had been intended to require knowing conversion to fall within the same category with embezzlement, stealing and purloining, the word "and" would have been used in the statute. Furthermore, the phrase "knowingly converts to his use or the use of another" would be surplusage if placed in the same category with embezzlement, stealing and purloining.

Though we had independently reached our conclusion as to the correct construction of section 641 before research brought to our attention Adolfson v. United States, 9 Cir., 159 F.2d 883, 885, we find that case supports our own interpretation. There, the Court of Appeals for the Ninth Circuit was required to construe section 87 of Title 18 United States Code, which was one of the statutes consolidated into section 641 of Title 18. See Title 18, U.S.Code Congressional Service, 80th Cong., 2d Sess., page 2505. The Court of Appeals in the Adolfson case stated that the insistence of Adolfson was that section 87 is purely an embezzlement statute; that the indictment charged embezzlement and nothing more; and that to "apply the property of another to one's own use is to embezzle". The contention was thus rejected: "The simple language of section 87 refutes that argument for it covers several specifically named offenses wholly apart and divorced from the technical offense of embezzlement. One of these specifically and separately named offenses is that of knowingly applying to one's own use property `furnished or to be used for the military or naval service'. The prohibition against knowingly applying Government property appears in the text of section 87 after the word `or' which follows the reference to the offense of embezzlement. The use of the word `or' clearly indicates alternative circumstances (cf. Barkdoll v. United States, 9 Cir., 147 F.2d 617, 618) and was obviously intended to identify and define a wholly separate and distinct offense, and we so hold. Appellant would have us read out of section 87 a meaning, a purpose, a definition and a protection of public property which to us clearly appears to speak the plain intent of the lawmakers." 159 F.2d 885, 886.

In passing, it might well be observed that, while the pertinent portion of the statute before us exacts as essential to conviction...