270 F.2d 274 (9th Cir. 1959), 15948, Chappell v. United States

Docket Nº:15948.
Citation:270 F.2d 274
Party Name:Vernon CHAPPELL, Appellant, v. UNITED STATES of America, Appellee.
Case Date:August 11, 1959
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 274

270 F.2d 274 (9th Cir. 1959)

Vernon CHAPPELL, Appellant,

v.

UNITED STATES of America, Appellee.

No. 15948.

United States Court of Appeals, Ninth Circuit.

August 11, 1959

Page 275

Wendell P. Kay, Kay & Buckalew, John R. Connolly, Anchorage, Alaska, for appellant.

William T. Plummer, U.S. Atty., George N. Hayes, George F. Boney, Asst. U.S. Attys., Anchorage, Alaska, for appellee.

Before POPE, STEPHENS and HAMLIN, Circuit Judges.

POPE, Circuit Judge.

By an indictment filed in the District Court for the District of Alaska, Third Judicial Division, appellant was charged in six counts with violation of § 641, Title 18 U.S.C. 1 Upon trial, a jury returned a verdict of guilty on Counts I and V; one count had been dismissed and appellant was found not guilty on the remaining three. Count I is as follows: 'Sometime between the 1st day of August, 1956, and the 1st day of October, 1956, a more exact date being unknown to your Grand Jurors and therefore not alleged, at or near Anchorage, Third Judicial Division, District of Alaska, Vernon Chappell did wilfully, unlawfully and feloniously, knowingly convert to his own use the services and labor of Albert J. Cline a member of the military service of the United States, to-wit, an airman in the United States Air Force stationed at Elemendorf Air Force Base, Alaska, during duty hours for the sad Vernon Chappell's own personal use and benefit, in that the said Vernon D. Chappell did cause the said Albert J. Cline to paint the interiors of three private dwelling establishments belonging to the said Vernon D. Chappell without reimbursing the United States for the value of such services and labor, such service and labor being a thing of value belonging to the United States and being of a value of more than One Hundred Dollars ($100.00).'

The evidence in support of this Count was that at the time of the alleged offense, the appellant was a Master Sergeant in the United States Air Force, assigned to Headquarters Squadron Section,

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Alaskan Air Command, Elmendorf Air Force Base, Alaska. He was Mess Steward of the Headquarters Squadron. The appellee's brief sets forth the following summary of the Government's proof: 'It was proved that for a period of about three weeks from August to September 1956, that an Airman Cline, who was under the supervision of the appellant, worked for the appellant during his normal duty hours. Cline painted several apartments owned by the appellant in Mountain View, Alaska. The overwhelming weight of the evidence proved that Cline performed none of his military duties during the period he was working for the appellant. The appellant put Cline one sick call to cover the time on one day so he could work for the appellant on duty hours. Cline did go on sick call and worked for Chappell instead.'

Upon this appeal, insofar as the same affects the verdict as to Count, I, the appellant assigns as error certain rulings of the court in respect to the admission of evidence, the failure to instruct the jury that Cline, who testified, was an accomplice of the defendant, and the failure of the court to require the production of certain statements made by witnesses to investigative officers of the Government. Other assignments of error in the instructions were made including the asserted error of the court in its instruction on criminal intent.

We find it unnecessary to consider these specifications of error for we are satisfied that Count I of the indictment has stated no offense. Although the point is not made in appellant's brief, the failure of this Count of the indictment, and of the evidence which followed it, to disclose any violation of this section of the Act, in our view constitutes plain error within the meaning of Rule 52(b), 18 U.S.C. 2

A reference to § 641, (footnote 1, supra), discloses that it provides for the punishment of one who 'knowingly converts to his use * * * any record, voucher, money, or thing of value of the United States * * * or any property made or being made under contract for the United States.'

It is plain that there is no warrant in the language of this section to sustain the Government's attempt to treat the services and labor of Cline as a thing of value. § 641 was the product of the revision of Title 18 which was enacted June 25, 1948. As shown by the Reviser's note to this section, it was intended to consolidate §§ 82, 87, 100 and 101 of the earlier Title 18. The only changes made, it appears, were 'changes necessary to effect the consolidation'. It was in this revision that the words 'converted to his use' were first imported in the sense here used. 3 As noted in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288, where the history of this section is discussed at length, 'The word 'converts' does not appear in any of its predecessors'. (Footnote 28, 342 U.S. at page 269, 72 S.Ct. at page 253). 4

In the Morissette case the Court said: 'We find no other purpose in the 1948 re-enactment than to collect from scattered sources crimes so kindred as to belong in one category.' (342 U.S. at page 266, 72 S.Ct. at page 251) This was referred to by the Court as 'stealing, larceny, and its variants and equivalents.' Such offenses were never thought to be committed by one man making use of the services of another's servant without reimbursing the master.

It is undoubtedly true that in some senses the master's right to the services

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of his servant may be regarded as property or as a thing of value, but the utilization of such services by a stranger has never been known to be comprehended within the definition of statutes dealing with larceny, theft, or their 'variants and equivalents.' Thus Blackstone defines larceny as follows: 'Larceny is the felonious taking and carrying away of the personal goods of another.' Burdick, Law of Crimes, § 503: 'At common law, personal property in order to be subject to larceny must be corporeal or tangible. Mere credits are not subject of larceny, or mere incorporeal property rights like franchises and licenses, as distinguished from physical property.'

The question then is whether the revision of Title 18 in inserting in § 641 the words 'whoever * * * converts to his use, or the use of another * * * any * * * thing of value of the United States * * *.' was intended so to enlarge the original import of the revised sections as to bring within the prohibition of the statute acts like those charged to this defendant which involved the improper or unauthorized use of the services of Airman Cline.

The mere importation of the words 'converts to his use' cannot be held to have brought about that result. In the Morissette case the Court dealt with a somewhat similar question raised by the Government's contention that in using these words Congress imported a new idea into the section, namely, that to 'convert' was a crime without the element of intent, thus differing from the concept prevailing in the cases of stealing, larceny, or purloining. Said the Court: 'If one crime without intent has been smuggled into a section whose dominant offenses do require intent, it was put in ill-fitting and compromising company.' (342 U.S. at page 269, 72 S.Ct. at page 253) It added: (footnote mentioned above) 'The 1948 Revision was not intended to create new crimes but to recodify those then in existence.' We cannot believe that in importing the new words 'knowingly converts' Congress meant that the subject of the conversion should be of any different type than the subject of larceny or that it could be other than personal goods.

The problem now before us is even simpler than that which was met in the Morissette case, for the word 'convert' has a long history in the law, throughout which it has always been used in connection with interferences with...

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