Center v. United States

• Decision Date: 20 April 1938
• Docket Number: No. 4265.,4265.
• Citation: 96 F.2d 127
• Parties: CENTER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

96 F.2d 127 (1938)

CENTER et al. v. UNITED STATES.

No. 4265.

Circuit Court of Appeals, Fourth Circuit.

April 20, 1938.

C. Granville Wyche, of Greenville, S. C., for appellants.

Edward P. Riley, Asst. U. S. Atty., of Greenville, S. C. (Oscar H. Doyle, U. S. Atty., of Greenville, S. C., on the brief), for the United States.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

NORTHCOTT, Circuit Judge.

In April, 1927, the three appellants, Doster Center, John Center, and W. D. Marchbanks, together with R. A. Center, Herman Payne, and H. Clyde Gilreath, were indicted in the District Court of the United States for the Western District of South Carolina, at Greenville, for a violation of section 242, title 18, U.S.C.A. In October, 1937, a motion was made on behalf of the defendants to quash the indictment, which motion was denied, and, the defendants pleading not guilty, a trial was had before a jury. After the evidence was taken, the court directed a verdict of not guilty as to R. A. Center and Herman Payne but refused to direct a verdict of not guilty as to the appellants and H. Clyde Gilreath. The jury found H. Clyde Gilreath not guilty and found the appellants guilty. A motion was made on behalf of the appellants for a new trial, which motion was denied, and the trial judge sentenced Doster Center and John Center to six months' imprisonment and appellant W. D. Marchbanks to imprisonment for one year and one day. From this action of the court below this appeal was brought.

The appellants were charged in the indictment with conspiring to injure one Frank Peahuff and his wife, Ella Peahuff, because of their having appeared and testified on behalf of the United States in a criminal prosecution in the District Court of the United States for the Western District of South Carolina. The material portion of the indictment is as follows:

"That R. A. Center, Herman Payne, John Center, Doster Center, W. D. Marchbanks and H. Clyde Gilreath, all late of Greenville County, South Carolina, on the twenty-second day of October, in the year of our Lord one thousand nine hundred and thirty-six, at Greenville, in Greenville County, in said State of South Carolina, in the Greenville Division of the Western District of South Carolina, and within the jurisdiction of this court, did feloniously combine, conspire, confederate and agree together to injure Frank Peahuff and Mrs. Ella Peahuff in their person, on account of the said Frank Peahuff and Mrs. Ella Peahuff having appeared as witnesses in the United States District Court for the Western District of South Carolina, at Greenville, aforesaid, on the thirteenth day of October, 1936, and testified in behalf of the United States in a case then and there being tried in said court, entitled United States versus Homer Hawkins, Geneva Hawkins and Ellie Center, charged with violating section 51, title 18, U.S.C.A., that is to say the said R. A. Center, Herman Payne, John Center, Doster Center, W. D. Marchbanks and H. Clyde Gilreath, then and there combined, conspired, confederated and agreed together as aforesaid, to injure the said Frank Peahuff and Mrs. Ella Peahuff in their persons because of their having appeared and testified as witnesses for the government, as aforesaid, by then and there abusing, cursing, assaulting and shooting at the said Frank Peahuff and Mrs. Ella Peahuff with a deadly weapon, to wit, a pistol, and by other unlawful means and practices. * * *"

It is contended that the indictment is faulty because it was not alleged that the defendants knowingly conspired to commit the offense charged or that they knew that the parties conspired against had appeared as witnesses in the federal court, or that overt acts alleged to have been done were committed knowingly. It was also urged in support of the motion to quash the indictment that it was duplicitous in that it was attempted to charge in one count two separate and distinct offenses.

We are of the opinion that the indictment is sufficient and that the motion to quash was properly overruled. The Supreme Court said in Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 419, 76 L.Ed. 861:

"The rigor of old common-law rules of criminal pleading has yielded, in modern practice, to the general principle that formal defects, not prejudicial, will be disregarded. The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, `and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any...