Carter v. United States, 3814.
| Decision Date | 22 March 1949 |
| Docket Number | No. 3814.,3814. |
| Citation | 173 F.2d 684 |
| Parties | CARTER v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
H. Harold Calkins, of Denver, Colo., for appellant.
Malcolm Miller, Asst. U. S. Atty., of Lawrence, Kan. (Randolph Carpenter, U. S. Atty., and Lester Luther, Asst. U. S. Atty., both of Topeka, Kan., on the brief) for appellee.
Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.
An indictment was returned in the United States Court for Kansas, charging that on or about June 13, 1946, on lands acquired for the use of the United States and under the exclusive jurisdiction of the United States, Frank Carter with premeditation stabbed and murdered Fernando Cervantes. The defendant entered a plea of guilty to murder in the second degree and was sentenced to imprisonment for a period of forty years. The defendant subsequently filed in the case a "motion for relief from judgment" in which he sought to have the judgment and sentence vacated. The motion was denied. About eighteen days later, the defendant filed a motion to vacate the order denying the motion for relief from judgment, and for a resubmission. In such motion, it was alleged that the clerk of the court withheld notice of the order denying the motion for relief from judgment until after the time for appeal from such order had expired. An order was entered denying the motion to vacate and for a resubmission, and the defendant appealed from such order. The order was reversed and the cause remanded with directions. Carter v. United States, 2 Cir., 168 F.2d 310. After the mandate was spread, the court entered an order denying the motion for relief from judgment. This appeal is from that action.
The contention urged for reversal of the order is that the indictment was insufficient in law. The argument is that malice is an essential element of the crime of murder and that the indictment failed to charge that element. Section 273 of the Criminal Code, 18 U.S.C.A. § 452 now § 1111, provides that murder is the unlawful killing of a human being with malice aforethought; that murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing or murder committed in the perpetration of or attempt to perpetrate arson, rape, burglary, or robbery, or murder perpetrated from a premeditated design unlawfully and maliciously to effect the death of a human being other than the one killed, is murder in the first degree; and that any other murder is murder in the second degree. Section 274, 18 U.S.C.A. § 453 now § 1112, provides that manslaughter is the unlawful killing of a human being without malice. And section 275, 18 U.S.C.A. § 454 now §§ 1111, 1112, fixes the penalty for murder in the first degree, murder in the second degree, and manslaughter. The Sixth Amendment to the Constitution of the United States provides among other things that in all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation. And under that constitutional provision, it is essential to the validity...
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