Wendell v. United States

• Citation: 34 F.2d 92
• Decision Date: 22 July 1929
• Docket Number: No. 2881.,2881.
• Parties: WENDELL et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

34 F.2d 92 (1929)

WENDELL et al. v. UNITED STATES.

No. 2881.

Circuit Court of Appeals, Fourth Circuit.

July 22, 1929.

Emil T. Mallek and George W. Cameron, both of Baltimore, Md. (R. Palmer Ingram and Helen Elizabeth Brown, both of Baltimore, Md., on the brief), for appellants.

A. W. W. Woodcock, U. S. Atty., of Baltimore, Md.

Before PARKER and NORTHCOTT, Circuit Judges, and WATKINS, District Judge.

PARKER, Circuit Judge.

Samuel Wendell, Royal Leikin, and Moe Lieberman, hereinafter referred to as defendants, were convicted in the court below of violation of section 4 of the National Motor Vehicle Theft Act of October 29, 1919, 41 Stat. 324 (18 USCA § 408), and, from sentence thereon, they have appealed to this court. The only question raised by their appeal which merits discussion is one as to the sufficiency of the indictment.

The indictment charges that the defendants did "feloniously receive and conceal" a certain Buick automobile, "moving as, and which is a part of, and which constitutes interstate commerce, * * * knowing the same to have been stolen." It is claimed that the indictment is insufficient because it does not contain a direct averment that the automobile was in fact stolen. It is to be observed, however, that it charges the crime in the exact language of the statute, which provides:

"Sec. 4. That whoever shall receive, conceal, store, barter, sell, or dispose of any motor vehicle, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000, or by imprisonment of not more than five years, or both."

In the federal courts the rule is well settled that ordinarily it is sufficient to charge a crime in the language of the statute defining it. Ledbetter v. U. S., 170 U. S. 606, 612, 18 S. Ct. 774, 42 L. Ed. 1162; Pounds v. U. S., 171 U. S. 35, 38, 18 S. Ct. 729, 43 L. Ed. 62. And it is expressly provided by federal statute that "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." Rev. St. § 1025 (18 USCA § 556).

"The object of the indictment," said Mr. Justice Field in U. S. v. Hess, 124 U. S. 483, 487, 8 S. Ct. 571, 574 (31 L. Ed. 516), "is — First, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had."

And, as said by the late Judge Sanborn in Goldberg v. U. S. (C. C. A. 8th) 277 F. 211, 215: "The true test of the sufficiency of an indictment is that it sets forth the facts which the pleader claims constitute the alleged transgression so distinctly as to advise the accused of the charge which he has to meet and give him a fair opportunity to prepare his defense, so particularly as to enable him to avail himself of a conviction or acquittal in defense of another prosecution for the same offense, and so clearly that the court may be able to determine whether the facts there stated are sufficient to support a conviction."

This court, speaking through the late Judge Rose, in Martin v. U. S., 299 F. 287, 288, said: "The sufficiency of a criminal pleading should be determined by practical, as distinguished from purely technical, considerations. Does it, under all the circumstances of the case, tell the defendant all that he needs to know for his defense, and does it so specify that with which he is charged that he will be in no danger of being a second time put in jeopardy? If so, it should be held good."

In the light of these authorities and of the statutory provision above quoted, there can be no doubt of the sufficiency of the indictment here. It is true that it is not charged in so many words that the automobile was stolen, but the statute does not require...