Considine v. United States

• Citation: 112 F. 342
• Decision Date: 03 December 1901
• Docket Number: 951.
• Parties: CONSIDINE v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

112 F. 342

CONSIDINE v. UNITED STATES.

No. 951.

United States Court of Appeals, Sixth Circuit.

December 3, 1901

Shay &amp Cogan, for plaintiff in error.

William E. Bundy, U.S. Atty., and Sherman T. McPherson, Asst. U.S Atty.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

DAY Circuit Judge.

The plaintiff in error was convicted of the crime of unlawfully breaking and entering the post office at Granville, Ohio, on the night of October 15, 1896. The crime is defined by section 5478 of the Revised States of the United States which is as follows:

'Any person who shall forcibly break into, or attempt to break into any post office, or any building used in whole or in part as a postoffice, with intent to commit therein larceny or other depredation, shall be punishable by a fine of not more than one thousand dollars, and by imprisonment at hard labor for not more than five years.'

Numerous exceptions were taken at the trial. We shall notice such as arise upon the record in a form permitting review of the same. At the trial the plaintiff in error insisted upon the right to challenge ten of the panel peremptorily. The court was of the opinion that, under the statute, the accused was entitled to only three challenges, and ruled accordingly. After the three challenges had been exhausted the fourth juror was challenged peremptorily by the accused, but the court overruled the challenge, and the juror was permitted to sit upon the trial. The right to challenge in cases of this character depends upon the construction to be given section 819 of the Revised Statutes, which reads, in part, as follows:

'When the offense charged is treason or a capital offense, the defendant shall be entitled to twenty and the United States to five peremptory challenges. On the trial of any other felony, the defendant shall be entitled to ten and the United States to three peremptory challenges; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges.'

A reading of this section makes it obvious that if the accused is on trial for a crime-- other than treason, or a capital offense-- which is a felony, he will be entitled to ten peremptory challenges, but when upon trial for a crime not a felony within the meaning of this section, he is entitled to only three peremptory challenges. It becomes important, therefore, to determine what is meant in the statute when it uses the word 'felony.' The term at the common law was defined to be any offense which worked forfeiture of lands, or goods, or both. Ex parte Wilson, 114 U.S. 417, 5 Sup.Ct. 935, 29 L.Ed. 89; Bannon, v. U.S., 156 U.S. 464-468, 15 Sup.Ct. 467, 39 L.Ed. 494. While the common-law definition of the term in its origin was as above stated, under our system of jurisprudence the term can have but little meaning in its common-law signification, as under our system crimes do not work forfeiture of estate, provisions prohibiting that result being in most, if not all, of the state constitutions. In a majority of states the term has been defined to include offenses punishable by death or by imprisonment in the penitentiary. 12 Am.& Eng. Enc. Law (2d Ed.) p. 1032. As pointed out by Mr. Justice Brewer, in Reagan v. U.S., 157 U.S. 301, 15 Sup.Ct. 610, 39 L.Ed. 709, the common understanding of the term departs largely from the technical meaning it had at common law, owing to the want of application in this country of the former test as to what constituted a felony. The changed situation as to the punishment of crimes which formerly constituted the test of what constituted felony in England, as well as in this country, is treated of by Bishop, in his work on Criminal Law, as follows:

'And the former test to determine what is felony, and what is not, has little or no practical use in either country. Consequently, where no statute has defined felony, we look into the books upon common-law crimes, and see what was felony, and what was not, under the older laws of England. And, though we have lost the old test, we hold that to be felony which was such when the test was operative.' 1 Bish. Cr. Law (8th Ed.) § 615.

Congress would have relieved the situation of such uncertainty had the general practice in state legislation been followed in dividing crimes according to punishment between the grades of felonies and misdemeanors. As this has not been done, and as there is no definition of felony in the statutes of the United States, its meaning must be ascertained from the construction given to the term in federal decisions of authority. From such authorities certain general rules may be said to have been established. When a statute says that a certain offense shall be a misdemeanor that fixes its character for the purpose of determining the number of challenges to which the accused is entitled, regardless of the original character of the offense. Reagan v. U.S., 157 U.S. 301, 15 Sup.Ct. 610, 39 L.Ed. 709. When a statute uses a term such as 'robbery' or 'burglary,' which had, at common law, a well-defined meaning, and was classed as a felony, the party is entitled to ten challenges. Harrison v. U.S., 163 U.S. 140, 16 Sup.Ct. 961, 41 L.Ed. 104. In that case the term 'robbery' was used in the statute defining the offense, and it is held that to 'rob' at common law was a felony, and that the word 'rob' in the statute is used in the common-law sense. In a statute such as the one under consideration, where no definition of the term is inserted, in the absence of such definition the word is held to be used as designating such serious offenses as were formerly punishable by death, or by forfeiture of the lands or goods of the offender, and consequently classed as felonies at the common law. Bannon v. U.S., 156 U.S. 464, 15 Sup.Ct. 467, 39 L.Ed. 494; Ex parte Wilson, 114 U.S. 417-423, 5 Sup.Ct. 935, 29 L.Ed. 89. In one of the earliest and most comprehensive discussions of the subject (U.S. v. Coppersmith (C.C.) 4 Fed. 198), Judge Hammond summarizes his conclusion to be that the term 'felony,' as used in this statute, includes cases (1) where the offense is declared to be felonious, expressly or by implication; (2) where the offense is not defined by statute, but is designated by its common-law name a felony, known as such as the common law; (3) when congress adopts a state law as to an offense made by the law of the state as felony. The question in the present case is, therefore, reduced to this: Is the offense for which the accused was upon trial one which was classed at the common law as a felony? We are cited to ancient statutes, somewhat analogous, making it a felony to take from any dwelling house anything of the value of five shillings or over, but this statute has little similarity to the one under consideration. The present offense was created by the law of the United States, for the purposes of punishing the offense of breaking or attempting to break into a post office or post office building with the intention to commit therein larceny or other depredation, and it is purely a statutory offense, not of common-law origin. This section, 5478, is found in title 70, Rev. St., styled 'Crimes,' and in chapter 5 of that title, defining offenses against the operation of the government. It is in the division of that chapter defining postal crimes. The object of the statute is to protect the postal service of the United States, and to secure the buildings used for such purpose from felonious entry with the criminal intent defined in the statute. It is this feature of the crime which gives the federal government the right to punish such offenses under the powers granted by the constitution. U.S. v. Campbell (C.C.) 16 F. 233; U.S. v. Williams (D.C.) 57 F. 201. This is in no sense a common-law offense, and was not of the crimes known as felonies, within the principles established in interpreting statutes using the term without further definition. It follows that the court committed no error in limiting the accused to three peremptory challenges.

2. It is argued that the indictment is insufficient in that it fails to state that the post office where the offense is alleged to have been committed is within the county of Licking. This objection is enforced with the citation of many authorities to support the familiar principle that the indictment must contain a sufficiently accurate and particular description of the offense to enable the accused to make his defense, to enable the court to determine that the facts charged constitute an offense within the meaning of the law, and to enable the accused to avail himself of the judgment as a bar to further prosecution for the same cause. Unquestionably the acts and intents which constitute the crime must be set forth with reasonable particularity of time, place, and circumstance. In the indictment in question the charge is 'that James Considine, Andrew White, alias Charles Proctor, and Charles Gray, on, to wit, the fifteenth day of October, in the year of our Lord one thousand eight hundred and ninety-six, in the county of Licking, in the state of Ohio, in the circuit hand Eastern division of the district aforesaid, and within the jurisdiction of this court, did then and there unlawfully, knowingly, willfully and feloniously, forcibly...