Barone v. United States
Decision Date | 22 July 1953 |
Docket Number | No. 14735.,14735. |
Citation | 205 F.2d 909 |
Parties | BARONE v. UNITED STATES. |
Court | U.S. Court of Appeals — Eighth Circuit |
Eugene D. O'Sullivan, Omaha, Neb. (Eugene D. O'Sullivan, Jr., Omaha, Neb., on the brief), for appellant.
Edward J. Tangney, Asst. U. S. Atty., Omaha, Neb. (Joseph T. Votava, U. S. Atty., Omaha, Neb., and John E. Deming, Asst. U. S. Atty., Omaha, Neb., on the brief), for appellee.
Before GARDNER, Chief Judge, and SANBORN and JOHNSEN, Circuit Judges.
The indictment contained two other Counts on both of which he was acquitted. We shall refer to the appellant as defendant. On defendant's motion he was furnished a Bill of Particulars. In his motion he asked that the government be required to set forth the way or manner in which it was claimed that the defendant "* * * `did receive, relieve, comfort and assist' said Hardy and Belcastro in order to prevent their apprehension, trial and punishment together with the exact time and exact place in Omaha, Nebraska, where it is contended they were received, relieved, comforted and assisted." In response to the order based upon defendant's motion, the government in its Bill of Particulars stated:
After being furnished the Bill of Particulars defendant moved to dismiss the indictment because it did not charge a crime against the laws of the United States, because it was duplicitous, because it was vague, indefinite and uncertain, and because the law under which it was drawn was unconstitutional. This motion was denied. Thereafter defendant was tried by the court and a jury and at the close of all the testimony he interposed a motion for acquittal which was denied and the case was submitted to the jury which returned a verdict of "guilty" on Count I and "not guilty" on Counts II and III of the indictment.
On his appeal defendant contends: (1) That the court erred in overruling his motion to dismiss the indictment because it is indefinite and non-informative and lacks precision, certainty and particularity in advising defendant as to the nature and cause of the accusation made against him; (2) That the court erred in overruling his motion for acquittal because the government failed to prove defendant guilty by evidence beyond a reasonable doubt and that there is no substantial evidence sustaining the verdict of guilty; (3) That substantial evidence is not sufficient to sustain a conviction in a criminal case, but the evidence must be such as to prove the defendant's guilt beyond a reasonable doubt and that any other rule or law would deny defendant due process of law as guaranteed by Article V of the Amendments to the United States Constitution; (4) That the court erred in overruling objections of defendant to various offers of hearsay testimony set out in his brief; (5) That the court erred in that it failed to instruct the jury on its own motion relative to the basic law governing the determination of the case in view of the fact that the government's Bill of Particulars limited the prosecution to proof within the area of the Bill; (6) That the court erred in that it denied bail to defendant pending this appeal.
Defendant's challenge to the indictment is based on the assertion that it is too indefinite and uncertain to inform him of the nature of the accusation against him. It is not pointed out in what particular the indictment is defective and it is observed that in the Bill of Particulars furnished him he was advised in unusual detail not only of the nature of the accusation against him, but of the alleged facts upon which the accusation was based. The test is not whether the indictment could possibly be made more definite and certain, but whether it contains every element of the offense intended to be charged and sufficiently informs the defendant of what he must be prepared to meet and whether in the event of his conviction he can plead that conviction as a defense in case other criminal proceedings are subsequently brought against him for the same offense. Hale v. United States, 8 Cir., 25 F.2d 430; Holmes v. United States, 8 Cir., 134 F.2d 125; Hewitt v. United States, 8 Cir., 110 F.2d 1; Keys v. United States, 8 Cir., 126 F.2d 181. In Hewitt v. United States, supra 110 F.2d 5, we said, "The true test of the sufficiency of an indictment is not whether it could have been made 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 against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.'" The same test is substantially reiterated by us in Holmes v. United States, supra 134 F.2d 129, where we said, ...
To continue reading
Request your trial-
United States v. Anthony
...The court agreed and later so charged. See Babb v. United States, 5 Cir., 1955, 218 F.2d 538, at page 541; Barone v. United States, 8 Cir., 1953, 205 F.2d 909, at page 914. Defendant's points were thereafter offered, discussed and ruled upon out of the hearing of the As to the charge on cir......
-
United States v. Head
...in a separate prosecution, Clark pleaded guilty to the predicate offense alleged in Head's indictment. As we said in Barone v. United States, 205 F.2d 909, 914 (1953), a defendant charged with being an accessory after the fact “was entitled to be confronted with the witnesses and the princi......
-
National Labor Relations Bd. v. West Coast Casket Co.
......NATIONAL LABOR RELATIONS BOARD. v. WEST COAST CASKET CO., Inc. No. 13515. United States Court of Appeals Ninth Circuit. June 30, 1953. Rehearing Denied July 29, 1953.205 F.2d ......