Collins v. United States

• Decision Date: 28 October 1918
• Docket Number: 3156.
• Citation: 253 F. 609
• Parties: COLLINS v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

253 F. 609

COLLINS v. UNITED STATES.

No. 3156.

United States Court of Appeals, Ninth Circuit.

October 28, 1918

This cause is here on writ of error at the instance of William M Collins, defendant below, who was charged with a violation of the Espionage Act of Congress (Act June 15, 1917, c. 30, 40 Stat. 217). The indictment contains two counts. Count 1 charges that Collins, on or about December 16, 1917, at Montesano, Wash., 'when the United States was at war with Germany, did willfully, knowingly, unlawfully, and feloniously make and convey false reports and false statements, with intent to interfere with the operation and success of the military forces of the United States, and to promote the success of its enemies. ' The second count is of like tenor, except that the charge is based upon the declaration of the act for causing and attempting to cause insubordination, disloyalty, mutiny, and refusal of duty in the military forces of the United States.

The indictment was returned January 9, 1918. The defendant was arraigned and entered a plea of not guilty January 14, and the cause was set for trial January 29, 1918. On January 28th, apparently without withdrawing his plea of not guilty the defendant filed a demurrer to the indictment, assigning as reasons therefor that neither of the counts charged an offense against the laws of the United States, nor did they state facts sufficient to constitute a crime. After argument the demurrer was overruled, and the court thereupon required the prosecuting attorney to file forthwith a bill of particulars of the offenses charged, which was done.

When the cause came on for trial before a jury duly impaneled defendant's counsel objected to the court's receiving any evidence in support of the allegations of the indictment, and at the same time moved the court for an instructed verdict acquitting the defendant, upon the ground that the indictment does not state facts sufficient to constitute a crime. The objection was overruled, and the motion denied, and an exception was saved and allowed. The trial resulted in a conviction under count 1 and an acquittal under count 2. There was a motion at the conclusion of the testimony offered by the government for a directed verdict acquitting the defendant, but none at the close of the entire testimony. The motion was denied.

H. E. Foster, of Seattle, Wash., for plaintiff in error.

Clarence L. Reames, Sp. Asst. Atty. Gen., and Robert C. Saunders, U.S. Atty., of Seattle, Wash., for the United States.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge (after stating the facts as above).

Waiving any irregularity in filing and presenting the demurrer for consideration, the question presented for decision is whether the indictment is sufficient to support any evidence designed to secure a conviction.

It should be premised that a bill of particulars can in no way aid or render sufficient an indictment fundamentally bad. The office of a bill of particulars, where the indictment is good, is to render the defendant more particular information as to matters essential to his defense. It is directed to the discretion of the court, and before compelling the defendant to go to trial. United States v. Bayaud (C.C.) 16 F. 376, 382; United States v. Tubbs (D.C.) 94 F. 356, 360; Rinker v. United States, 151 F. 755, 759, 81 C.C.A. 379; United States v. Rintelen (D.C.) 233 F. 793, 799. In the Rinker Case the court says:

'When an indictment sets forth the facts constituting the essential elements of the offense with such certainty that it cannot be pronounced ill upon motion to quash or demurrer, and yet is couched in such language that the accused is liable to be surprised by the production of evidence for which he is unprepared, he should, in advance of the trial, apply for a bill of the particulars; otherwise it may properly be assumed as against him that he is fully informed of the precise case which he must meet upon the trial.'

The bill of particulars, therefore, filed by the prosecuting attorney, can in no way aid the sufficiency of the indictment.

Now, as to the sufficiency of the indictment: Where a statute declares that certain or specific acts, or the doing of certain things, shall constitute an offense, it is always necessary to state what the accused did whereby he transgressed the law, in order that he may be advised of the specific charge made against him, to enable him to concert his defense, and to avail himself of his conviction or acquittal against further prosecution of the same cause, and, further, to advise the court of the facts relied on for conviction, so that it may determine whether they are sufficient in law to support the charge. It is not sufficient in such a case to state the supposed offense in the language of the statute. As an apt illustration, by the Criminal Code (Act March 4, 1909, c. 321, Sec. 125, 35 Stat. 1111 (Comp. St. 1916, Sec. 10295)), it is declared that:

'Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, * * * shall willfully and contrary to such oath state or subscribe any material matter which he does not believe to be true, is guilty of perjury.'

It can scarcely be contended that an indictment charging perjury simply in the language of the statute would be sufficient without stating what the oath was that was taken, its falsity, the defendant's belief that it was false, before whom taken, and the other facts and circumstances, as to time, place, and subject-matter, sufficiently to apprise the accused of the specific charge made against him, and to inform ...