Biskind v. United States

• Decision Date: 12 May 1922
• Docket Number: 3650.
• Citation: 281 F. 47
• Parties: BISKIND v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

281 F. 47

BISKIND v. UNITED STATES.

No. 3650.

United States Court of Appeals, Sixth Circuit.

May 12, 1922

L. W Wickham, of Cleveland, Ohio (Reed, Meals, Orgill & Maschke of Cleveland, Ohio, on the brief), for plaintiff in error.

Joseph C. Breitenstein, Asst. U.S. Atty., of Cleveland, Ohio (E. S Wertz, U.S. Atty., of Cleveland, Ohio, on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

KNAPPEN Circuit Judge.

Plaintiff in error, together with one Meyer and one Beattie, was indicted upon a charge of conspiracy under section 37 of the Criminal Code (Comp. St. Sec. 10201) to commit an offense against the United States, the charge being in substance this:

Meyer had been convicted in the court below of a criminal offense and had thereupon been sentenced to imprisonment in the Warrensville workhouse. The three conspirators agreed that Meyer and plaintiff in error should pay a certain sum of money to Beattie, in consideration of which the latter would pretend to be Meyer, and under that name and character present himself to and get himself accepted by the workhouse officials as Meyer, and so serve Meyer's sentence; that during such service Meyer should absent himself from Cleveland and remain in hiding; that after the sentence had been served he should return to Cleveland, and with the co-operation of plaintiff in error further compensate Beattie for so serving the sentence. The overt acts charged were that Meyer made the agreed initial payment, and that Beattie presented himself to the workhouse officials as Meyer, procured himself to be so accepted, and accordingly served a portion of Meyer's sentence. Beattie pleaded guilty. Plaintiff in error demurred to the indictment as not stating an offense against the laws of the United States. The demurrer was overruled, plea of not guilty was entered by plaintiff in error and Meyer, and trial had. The facts charged by the government were admitted. It also appeared that when the agreement in question was made Meyer was at large upon bail, conditioned for his surrender into custody at a fixed date to begin his sentence, and that when the day for such surrender arrived the commitment papers directing such confinement had been delivered to the workhouse authorities and were awaiting Meyer's arrival. A motion to direct verdict on the ground that the facts did not constitute a violation of the statute was overruled, the cause submitted to the jury, and verdict of conviction rendered.

The sole question presented relates to the legal sufficiency of the indictment and proofs. The indictment charges a conspiracy to commit 'an offense against the United States; that is to say, to violate section 143 of the United States Criminal Code (section 10313) by rescuing and setting at liberty a person convicted of an offense and ordered committed,' etc. We agree with the contention that section 143 does not apply to the facts set out in the indictment, because that section punishes only a forcible rescue, which the stated facts negative. In our opinion, however, the misreference to that section does not invalidate the indictment. It is well settled that a reference to the section relied upon by the pleader, contained in either the caption or the margin of an indictment, does not limit the prosecution to proof of a case under such statute. Williams v. United States, 168 U.S. 382, 389, 18 Sup.Ct. 92, 42 L.Ed. 509; United States v. Nixon, 235 U.S. 231, 235, 35 Sup.Ct. 49, 59 L.Ed. 207. In those cases it was said that the caption or margin constitutes no part of the indictment, and neither adds to nor weakens the legal force of its averments, while in the instant case the reference to the statute is in the body of the indictment; but in our opinion the case before us is within the reason of the rule announced in the Williams and Nixon Cases. In the former, it is said to be 'wholly immaterial what statute was in the mind of the district attorney when he drew the indictment, if the charges made are embraced by some statute in force,' and, again:

'We must look to the indictment itself, and if it properly charges an offense under the laws of the United States, that is sufficient to sustain it, although the representative of the United States may have supposed that the offense charged was covered by a different statute.'

And in the Nixon Case it is said:

'What was that statute, and on what statute the indictment was founded, was to be determined as a matter of law from the facts therein charged.'

The notice afforded to defendant would be no less, nor his confusion greater, because the reference to the statute is in the body rather than in the caption or margin of the indictment. In either case the reference to the statute indicates merely what the pleader thought was the applicable statute. Our conclusion is not wholly unfortified by authority. In Sugar v. United States, 252 F. 79, 84, 164 C.C.A. 191, this court held that the unnecessary (and possibly confusing) naming of section 5 of the Selective Service Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 2044e) as the legislation involved, when in fact the offense charged must, in connection with conspiracy section 37, have its basis, not only in section 5, but also in section 6 of the act (Comp. St. Sec. 2044f), did not invalidate the indictment, which was held to be--

'based on those provisions of the act, the language of which covers the offense charged, whether that language is found in section 5 or elsewhere; the act, and not the mere numbered sections of it, being the substantial thing to be regarded, and particularly, when the language of the indictment clearly points out what conduct is aimed at and sought to be punished. ' Certiorari denied, 248 U.S. 578, 39 Sup.Ct. 19, 63 L.Ed. 429.

In Vedin v. United States (C.C.A. 9) 257 F. 550, 551 168 C.C.A. 534, 535, it was held that 'the statute on which an indictment is found is determinable, as a matter of...