Azuma Kubo v. United States
| Citation | 31 F.2d 88 |
| Decision Date | 11 February 1929 |
| Docket Number | No. 5515.,5515. |
| Parties | AZUMA KUBO v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Ray T. Coughlin, of Sacramento, Cal., for plaintiff in error.
Geo. J. Hatfield, U. S. Atty., and George M. Naus, Asst. U. S. Atty., both of San Francisco, Cal.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
This is a writ of error to review a judgment of conviction under section 194 of the Criminal Code (18 USCA § 317). So far as deemed material to our present inquiry, that section declares that whoever shall steal, take, or abstract, or by fraud or deception obtain, from or out of any mail, post office, or station thereof, or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag or mail, or whoever shall buy, receive, or conceal, or aid in buying, receiving, or concealing, or shall unlawfully have in his possession, any letter, postal card, package, bag or mail, or any article or thing contained therein, which has been so stolen, taken, embezzled, or abstracted, as therein provided, shall be guilty of an offense. The indictment in this case charged that the plaintiff in error did knowingly, unlawfully, and feloniously buy, receive, and conceal a package which had been in the United States mail, in the custody of a mail messenger, which said package had been taken from the mail before it had been delivered to the person to whom it was directed. The sufficiency of the indictment is the only question presented for our consideration.
It will be observed from the foregoing statement that the indictment simply charged, in the language of the statute, that the package was taken from the mail, not that the taking was felonious, wrongful, or unlawful. As a general rule, no doubt, it is sufficient to charge a statutory crime in the words of the statute; but this is only true where the words in themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished. United States v. Carll, 105 U. S. 611, 26 L. Ed. 1135.
conspicuous example of an exception to the general rule, in so far as the use of the word "take," or "taken," is concerned; for, if the statute is construed literally, a person who takes a letter from the mail by mistake, or in an honest belief that he had a right to take and receive it, is guilty of an offense. In charging an offense under the first provision of the above section, it is not sufficient, therefore, to follow the language of the statute, but the taking must be charged to be felonious, wrongful, or unlawful. In re Burkhardt (D. C.) 33 F. 25; United States v. Meyers (D. C.) 142...
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United States v. Amorosa, 9431
...the omission of "knowingly" was not a fatal defect. Wheatley v. United States, 4 Cir., 159 F.2d 599, 600. And under Azuma Kubo v. United States, 9 Cir., 31 F.2d 88, stressed by appellant "unlawful" is an adequate substitute for "felonious". That case holds, 31 F.2d at page 89, that "the tak......
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United States v. Deer, C-8313.
...and the motion to dismiss is granted. 1 Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861; Azuma Kubo v. United States, 9 Cir., 31 F.2d 88; United States v. Amorosa, 3 Cir., 167 F.2d 596, 2 United States v. Valenti, D.C., 74 F. Supp. 718; Crank v. United States, 9 Cir.,......