Beauchamp v. United States, 9956.

• Decision Date: 01 April 1946
• Docket Number: No. 9956.,9956.
• Citation: 154 F.2d 413
• Parties: BEAUCHAMP v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

154 F.2d 413 (1946)

BEAUCHAMP v. UNITED STATES.

No. 9956.

Circuit Court of Appeals, Sixth Circuit.

April 1, 1946.

Donald B. Frederick, of Detroit, Mich., for appellant.

Vincent Fordell, of Detroit, Mich. (John C. Lehr, Thomas P. Thornton, and Vincent Fordell, all of Detroit, Mich., on the brief), for appellee.

Before SIMONS and ALLEN, Circuit Judges, and MILLER,¹ District Judge.

MILLER, District Judge.

The appellant, Edwin Charles Beauchamp, appeals from a judgment of conviction under an indictment, consisting of a single count, charging him with aiding and assisting a deserter from the United States Army. Section 94, Title 18 U.S.C.A.² He waived his right to a trial by jury, and following a trial before the District Judge was found guilty and sentenced to imprisonment for a period of twenty months.

The appellant complains that the trial court erred in overruling his motion for a directed verdict of not guilty made at the conclusion of the Government's case and renewed at the conclusion of all the evidence in the case. He contends that the indictment should have been dismissed for two reasons, (a) duplicity; (b) that it violates the Fifth and Sixth Amendments of the Constitution. The indictment, omitting allegations here immaterial, charges that the defendant "did * * * knowingly * * * aid and assist Alexander White, the said Alexander White being at said times a soldier in the military service of the United States who had deserted from said service and was attempting to desert from said service, as the said defendant * * * well knew; that is to say, that he, the said Edwin Charles Beauchamp, did * * * aid and assist said Alexander White in continuing his desertion and avoiding apprehension and seizure by the military authorities of the United States * * *." Appellant contends that the indictment charges him with two offenses, (a) with having aided a soldier in attempting to desert and (b) with aiding a soldier in continuing his desertion. We do not think that the single count of the indictment, considered in its entirety, is reasonably susceptible of such construction. The allegation that White was attempting to desert from the service is used in the conjunctive with the allegation that White had deserted from the service, and this conjunctive use of the two phrases is then specifically explained in these words: "That is to say, that he, the said Edwin Charles Beauchamp, did * * * aid and assist said Alexander White in continuing his desertion. * * *" A general expression in an indictment may be restricted and confined to a precise and definite fact by a description under a videlicet or scilicet. Commonwealth v. Hart, 10 Gray 465, 76 Mass. 465, 468. See United States v. Greve, D.C., 12 F.Supp. 372, 377. An indictment is not invalid for duplicity if the words employed make the singleness of the charge clear to the common understanding. Blum v. United States, 6 Cir., 46 F.2d 850. In any event, the question of duplicity was not raised before trial and was accordingly waived. Lemon v. United States, 8 Cir., 164 F. 953, 958; Wells v. United States, 9 Cir., 257 F. 605, 609; Barnard v. United States, 9 Cir., 16 F.2d 451, 453. See also Sparks v. United States, 6 Cir., 90 F.2d 61, 63; Matthews v. United States, 7 Cir., 300 F. 556; United States v. Louisville & Nashville R. Co., D.C.W.D.Ky. 165 F. 936, 941. Nor does the indictment violate the provisions of the Fifth and Sixth Amendments, regardless of its lack of form, provided that its allegations are sufficiently definite and certain to fairly apprise the defendant of what he must be prepared to meet in order to give him a fair opportunity to prepare his defense and so that the judgment may be a bar to further proceedings against him for the same offense. Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861; Wong-Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L. Ed. 545; Stumbo v. United States, 6 Cir., 90 F.2d 828. The indictment herein involved meets this test.

The appellant also contends that until there has been an adjudication by the proper military tribunal that the soldier herein involved is guilty of violating the Articles of War relating to desertion, 10 U.S.C.A. § 1530 et seq., the District Court was without jurisdiction to try the issue presented by the indictment. The statute contains no such limitation, and no authority is cited by appellant which so holds. The authorities relied upon by him, such as Kurtz v. Moffitt, 115 U.S. 487, 6 S.Ct. 148, 29 L.Ed. 458, United States ex rel. Feld v. Bullard, 2 Cir., 290 F. 704 and Crouch v. United States, 9 Cir., 13 F.2d 348, hold that when a person in the military service violates the Articles of War the military courts have exclusive jurisdiction of the offense. From this it is argued that since Congress has dealt with desertion as a military crime it is triable by court martial only and not by the civil tribunals. That general principle is not disputed. However, in the present case the appellant is neither a person in the military service nor is he being tried for desertion or any other violation of the Articles of War. He is a civilian being tried for a specific statutory crime made such by Act of Congress. Appellant's reliance upon the general rule of criminal law that a person can not be guilty as an accessory to a crime until the crime itself has been established fails for the reason that appellant was not tried as an accessory. The crime of accessory before the fact, well recognized at common law in state procedure, is not recognized in the trial of criminal offenses in the federal court. § 550, Title 18 U.S. C.A.; Kaufman v. United States, 2 Cir., 212 F. 613, 616, 617, Ann.Cas.1916C, 466; Morei v. United States, 6 Cir., 127 F.2d 827, 830. There are no common law offenses against the United States. United States v. Hudson, 7 Cranch 32, 3 L.Ed. 259; United States v. Britton, 108 U.S. 199, 206, 2 S.Ct. 531, 27 L.Ed. 698; Jones v. United States, 137 U.S. 202, 211, 11 S.Ct. 80, 34 L.Ed. 691. The appellant was charged with violating the provisions of a specific federal statute, which renders inapplicable the general principles present in a trial in a state court against a party as an accessory before the fact. In federal criminal jurisdiction it is not necessary that the principal be first convicted before bringing to trial one charged with aiding and abetting. Kaufman v. United States, supra. We find nothing in the statute or in the cases which prevents the District Court from proceeding in this case in the same manner as it proceeds in the trial of any other case involving an offense made such by federal statute. It is true that the Government has the burden of proving, among other facts, the necessary fact that the soldier involved was a deserter from the military service of the United States. But that issue of fact, as well as all other disputed facts, can be presented to the jury and decided by its verdict. Although the question was not directly involved in the case, such procedure was apparently approved by the Circuit Court of Appeals for the Second Circuit in Firpo v. United States, 261 F. 850, 852.

Appellant's final contention is that the trial court erred in overruling his motions for a finding of not guilty, in that the evidence failed to prove beyond a reasonable doubt the commission of the alleged offense. In passing on this question this Court must consider the evidence most favorable to the...