Davis v. United States, 13369.
| Decision Date | 13 March 1958 |
| Docket Number | No. 13369.,13369. |
| Citation | 253 F.2d 24 |
| Parties | George William DAVIS, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
George B. Boston, Bowling Green, Ky. (Rodes K. Myers, Bowling Green, Ky., on the brief), for appellant.
William B. Jones, Louisville, Ky. (J. Leonard Walker, Charles M. Allen, Louisville, Ky., on the brief), for appellee.
Before McALLISTER, MILLER and STEWART, Circuit Judges.
The indictment in this case charged that the appellant and two codefendants did "wilfully * * * conspire * * and agree together and with each other to commit certain acts made offenses against the United States of America by Section 5691, Title 26 United States Code, to-wit, carry on the business of retail liquor dealers, and said defendants did commit acts to effect the object of said conspiracy." Four overt acts on the part of the two codefendants were set out. Section 371, Title 18 U.S.Code. Following trial by jury and verdict of guilty, the appellant received a sentence of two years imprisonment and $1,000 fine, followed by this appeal.
Appellant contends that the indictment fails to charge an offense against the United States in that it is not an offense under Federal statutes to carry on the business of a retail liquor dealer, which is all that the indictment charges. In order for it to be an offense it is necessary under Section 5691, Title 26 U.S. Code, that it be accompanied by a wilful failure to pay the special tax as required by law. The failure to pay the tax is not specifically charged in the indictment.
It is settled law that in order for an indictment to be valid it must allege all of the elements which are necessary to constitute a violation of the statute. But in an indictment for conspiring to commit an offense, in which the conspiracy is the gist of the crime, it is not necessary to allege with technical precision all of the elements essential to the commission of the offense which is the object of the conspiracy, or to state such object with the detail which would be required in an indictment for committing the substantive offense. Certainty to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is necessary. Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 71 L.Ed. 545; Williamson v. United States, 207 U.S. 425, 447-449, 28 S.Ct. 163, 52 L.Ed. 278; Sandroff v. United States, 6 Cir., 158 F.2d 623, 624-625; Rose v. United States, 9 Cir., 149 F.2d 755, 758; Ladner v. United States, 5 Cir., 168 F.2d 771, 773.
Appellant disregards the fact that the indictment in the present case contains more than the allegation that defendants conspired to "carry on the business of retail liquor dealers." Prior to that allegation the indictment charges that the defendants conspired to commit certain acts "made offenses against the United States of America by Section 5691, Title 26 United States Code." This reference to a specific section of the statutes was sufficient to meet the test that the indictment must sufficiently apprise the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, that the record show with accuracy to what extent he may plead a former acquittal or conviction. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861; United States v. Debrow, 346 U.S. 374, 378, 74 S.Ct. 113, 98 L.Ed. 92. See also: Kempe v. United States, 8 Cir., 151 F.2d 680, 684; ...
To continue reading
Request your trial
-
U.S. v. Jeter
...under 18 U.S.C. Sec. 641. This count sufficiently advises defendant of the nature of the criminal charge. See Davis v. United States, 253 F.2d 24, 25 (6th Cir.1958) (rejecting argument that conspiracy count must list with "technical precision" all elements; reference to a "specific section ......
-
U.S. v. Fruehauf Corp.
...States v. Branan, 457 F.2d 1062, 1063-65 (6th Cir. 1972); United States v. Mixon, 374 F.2d 20, 22 (6th Cir. 1967); Davis v. United States, 253 F.2d 24, 25 (6th Cir. 1958). The indictment in the present case identified the object offenses, referring appellants to the specific statutory secti......
-
U.S.A. v. Smith et al
...to be valid it must allege all of the elements which are necessary to constitute a violation of the statute." Davis v. United States, 253 F.2d 24, 25 (6th Cir. 1958), quoted in Wabaunsee, 528 F.2d at 3. It is not necessary to spell out each element, but each element must be present in conte......
-
United States v. Fine, 70-Cr-126.
...crime itself is charged." See also, United States v. Grizaffi, 471 F.2d 69 (7th Cir. 1972). The government argues that Davis v. United States, 253 F.2d 24 (6th Cir. 1958), provides the appropriate standard for determining whether the allegations clearly identify the substantive offense. Tha......