Clay v. United States, No. 7467.
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Writing for the Court | MURRAH, , and HILL and SETH, Circuit |
| Citation | 326 F.2d 196 |
| Parties | Clone S. CLAY, Appellant, v. UNITED STATES of America, Appellee. |
| Docket Number | No. 7467. |
| Decision Date | 24 December 1963 |
326 F.2d 196 (1963)
Clone S. CLAY, Appellant,
v.
UNITED STATES of America, Appellee.
No. 7467.
United States Court of Appeals Tenth Circuit.
December 24, 1963.
Charles C. Green, Oklahoma City, Okl., for appellant.
Jack R. Parr, Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., on the brief), for appellee.
Before MURRAH, Chief Judge, and HILL and SETH, Circuit Judges.
HILL, Circuit Judge.
Clay appeals from an order of the lower court denying, without a hearing, a motion by him under 28 U.S.C.A. § 2255, to vacate and set aside his conviction and sentence imposed for violations of the narcotics laws. The motion was summarily denied upon the ground that the "motion and the files and records of the case conclusively show that the petitioner is entitled to no relief."
The record discloses that appellant was charged in a three-count indictment and in a one-count information with four separate illegal sales of narcotics in violation of 26 U.S.C.A. § 4705(a). The four counts were consolidated for trial without objection but, shortly before the time set for trial, appellant withdrew his pleas of not guilty and entered pleas of guilty to all four counts. Clay was sentenced to imprisonment for a term of ten years on each of the four counts with the sentences to run consecutively. This was Clay's third unsuccessful attempt in the court below to invalidate the sentences imposed and is the second appeal to this court.1
The only points raised on this appeal relate to the sufficiency of the indictment and information, which appellant contends are legally insufficient because: (1) In each of the four counts of the indictment and information the statutory
Rule 7(c), F.R.Crim.P., 18 U.S. C.A., provides that an indictment or information "* * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * *" The sufficiency of an indictment or information is to be determined by practical rather than technical considerations.2 The test is not whether the indictment could have been made more definite and certain. Rather, before a conviction, the indictment standing alone must contain the elements of the offense intended to be charged and must be sufficient to apprise the accused of the nature of the offense so that he may adequately prepare a defense. And, after a conviction, the entire record of the case must be sufficient so as to enable the accused to subsequently avail himself of the plea of former jeopardy if the need to do so should ever arise.3 The same rule or test is applicable on a collateral attack by motion under section 2255 to vacate and set aside a conviction and sentence.4 However, after a verdict or plea of guilty, every intendment must be indulged in support of the indictment or information and such a verdict or plea cures mere technical defects unless it is apparent that they have resulted in prejudice to the defendant.5 Prejudice to the defendant is, of course, a controlling consideration in determining whether an indictment or information is sufficient.6
We have no difficulty in concluding that the indictment and information, when measured by the standards of the foregoing rules, are sufficient as against the collateral attack on the ground of omitting the statutory language, "Secretary or his delegate". This is a purely technical argument or matter which is based upon the substitution in the indictment and information for that language, of the phrase "District Director of Internal Revenue". The...
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U.S. v. Prentiss, No. 98-2040
...in support of the indictment or information and such a verdict or plea cures mere technical defects . . . ." Clay v. United States, 326 F.2d 196, 198 (10th Cir. 1963). "[W]here there is a post-verdict challenge to an indictment asserting the absence of an element of the offense, it has been......
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United States v. Pilnick, No. 66 Cr. 958.
...376, 74 S.Ct. 113, 98 L.Ed. 92 (1953); Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1932); Clay v. United States, 326 F.2d 196 (10th Cir.), cert. denied, 372 U.S. 970, 83 S.Ct. 1095, 10 L. Ed.2d 132 4 See Russell v. United States, 369 U.S. 749, 763-764, 82 S.Ct. 1038, ......
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US v. Prentiss, No. 98-2040
...the defendant is, of course, a controlling consideration in determining whether an indictment . . . is sufficient. Clay v. United States, 326 F.2d 196, 198 (10th Cir. 1963) (emphasis added). In both Brown, 995 F.2d at 1504, and Smith, 553 F.2d at 1240-42, however, we declined to consider wh......
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United States v. Thomas, No. 23975.
...for which he was tried. See Russell v. United States, 369 U.S. 749, 764, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); Clay v. United States, 326 F.2d 196, 199 (10th Cir. 1963), cert. denied, 377 U.S. 1000, 84 S.Ct. 1930, 12 L.Ed.2d 1050 12 A useful analogy is provided by the required degree of spec......
-
U.S. v. Prentiss, No. 98-2040
...in support of the indictment or information and such a verdict or plea cures mere technical defects . . . ." Clay v. United States, 326 F.2d 196, 198 (10th Cir. 1963). "[W]here there is a post-verdict challenge to an indictment asserting the absence of an element of the offense, it has been......
-
United States v. Pilnick, No. 66 Cr. 958.
...376, 74 S.Ct. 113, 98 L.Ed. 92 (1953); Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1932); Clay v. United States, 326 F.2d 196 (10th Cir.), cert. denied, 372 U.S. 970, 83 S.Ct. 1095, 10 L. Ed.2d 132 4 See Russell v. United States, 369 U.S. 749, 763-764, 82 S.Ct. 1038, ......
-
US v. Prentiss, No. 98-2040
...the defendant is, of course, a controlling consideration in determining whether an indictment . . . is sufficient. Clay v. United States, 326 F.2d 196, 198 (10th Cir. 1963) (emphasis added). In both Brown, 995 F.2d at 1504, and Smith, 553 F.2d at 1240-42, however, we declined to consider wh......
-
United States v. Thomas, No. 23975.
...for which he was tried. See Russell v. United States, 369 U.S. 749, 764, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); Clay v. United States, 326 F.2d 196, 199 (10th Cir. 1963), cert. denied, 377 U.S. 1000, 84 S.Ct. 1930, 12 L.Ed.2d 1050 12 A useful analogy is provided by the required degree of spec......