United States v. Williams, 14166.
| Citation | 202 F.2d 712 |
| Decision Date | 26 March 1953 |
| Docket Number | No. 14166.,14166. |
| Parties | UNITED STATES v. WILLIAMS et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Bradford F. Miller, Asst. U. S. Atty., and Charles F. Herring, U. S. Atty., San Antonio, Tex., for appellant.
Archie S. Brown, Leonard Brown and Louis W. Schlesinger, San Antonio, Tex., H. M. Bellinger, San Antonio, Tex., for appellee Noral Williams.
Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.
The indictment in this case was in three counts. After a verdict of not guilty upon the first count had been returned by the jury, and of guilty upon the two remaining counts, the court below granted the appellees' motion in arrest of judgment on the second and third counts, and dismissed the indictment as to said two counts on the ground that neither of them stated an offense against the United States.
The second count charged that the appellees facilitated the transportation of certain merchandise, to-wit, "140 pounds of marihuana which they then knew had been imported into the United States contrary to law"; the third count charged them with receiving and concealing the same merchandise "which they then knew had been imported into the United States contrary to law"; neither count expressly alleged that the defendants "fraudulently or knowingly" facilitated, received, or concealed said merchandise.
The defendants pled not guilty to all three counts, and went to trial upon the issues joined by their pleas of not guilty. After their acquittal upon the first count and conviction upon the second and third counts, they for the first time objected to the sufficiency of counts two and three, the point being raised by their motion in arrest of judgment. Even if the indictment was fatally defective for failure directly and expressly to allege scienter or fraud on the part of the appellees, we think that such defect or omission was waived by the accused under Rule 12(b) (2) and (3) of the Federal Rules of Criminal Procedure, 18 U.S.C.
The transcript of the record contains none of the evidence that was before the jury. The charge of the court is not before us, and there is no bill of exceptions to anything prejudicial to the defendants that happened upon the trial. The indictment, the verdict of the jury, the motion in arrest of judgment, the order sustaining the motion, and the dismissal of the last two counts, constitute the pertinent parts of the record on appeal. Therefore the sufficiency of the indictment after verdict is the only issue presented. All other matters are presumed to have been done correctly.
While the indictment does not expressly allege fraud or knowledge in doing the things charged therein, it alleges that the defendants received, concealed, and transported 140 pounds of marihuana, which they then knew had been imported into the United States contrary to law. The necessary implication from this allegation is that they knowingly did these things, which reduces the issue before us to whether, under...
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...upon defects and imperfections in an indictment which might be waived or cured if he waited until after verdict. United States v. Williams, 5 Cir., 1953, 202 F.2d 712, 713; same case 203 F.2d 572, 573; Vasquez v. United States, 5 Cir., 1956, 229 F.2d 288, 289; 42 C.J.S. Indictments and Info......
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...to the indictment, defendants waived any objection other than that the indictment failed to charge an offense. United States v. Williams, 202 F.2d 712 (CA 5, 1953). In other words, it is not sufficient at this time for the indictment to be defective. If defendants' motion in arrest of judgm......
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