Dell'Aira v. United States, No. 4612.
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Writing for the Court | GILBERT, HUNT, and McCAMANT, Circuit |
Citation | 10 F.2d 102 |
Parties | DELL'AIRA v. UNITED STATES. |
Docket Number | No. 4612. |
Decision Date | 18 January 1926 |
10 F.2d 102 (1926)
DELL'AIRA
v.
UNITED STATES.
No. 4612.
Circuit Court of Appeals, Ninth Circuit.
January 18, 1926.
John J. Taaffe and Jos. L. Taaffe, both of San Francisco, Cal., for plaintiff in error.
George J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.
Before GILBERT, HUNT, and McCAMANT, Circuit Judges.
GILBERT, Circuit Judge (after stating the facts as above).
A demurrer was interposed to each count of the indictment for its failure to charge that the bill of lading referred to therein was issued by a common carrier. Act Aug. 29, 1916, 39 Stat. 538, under which the indictment was had, begins with the enactment "that bills of lading issued by any common carrier for the transportation of goods in any territory of the United States, or the District of Columbia, * * * or from a place in one state to a place in another state, * * * shall be governed by this act." Section 1 (Comp. St. § 8604aaa). It is true that the indictment contains no express allegation that the bills of lading therein referred to were issued by a common carrier. That fact, however, sufficiently appears in the allegations of each count.
It is charged in each that the bill of lading purported to represent goods for shipment in a car designated by initials and by number from a point in California to a point in some eastern state, and that the defendant altered the weight specified therein and took the altered bill to the diversion agent of the United States Railroad Administration at San Francisco, state of California, and procured to be issued to him in exchange therefor a new bill of lading for said car. Those allegations can bear no other construction than that the bills of lading were issued in interstate commerce by a common carrier. It was common knowledge that the United States Railroad Administration had no charge of or connection with private carriers.
Another ground of the demurrer which is urged here as ground for reversal is that in each count there is failure to set forth a literal copy of the bill of lading. The common-law rule is invoked that in an indictment for forgery a literal copy of the alleged forged instrument must be set out, unless the instrument is lost or destroyed, or is in the possession of the defendant, or for some other reason it is not available to the grand jury. In many of the states and in England the common-law rule has been abolished by statutes, which enact that in prosecutions for forgery it is sufficient to designate the instrument forged by the name by which it is known, without setting out its tenor, and in State v. Curtis, 39 Minn. 357, 40 N. W. 263, in the absence of such a statute, the common-law rule was rejected.
It is to be noted, however, that the offense with which the defendant is charged here is not the forgery of an instrument, but the alteration of certain figures in a valid instrument issued in the regular course of business. It is a statutory offense, and the indictment follows the statute. The cases in which it is held that an indictment in the exact language of the statute is not sufficient are those wherein the statute does not contain all the elements of the offense, but "the general rule still holds good that upon an indictment for a statutory offense the offense may be described in the words of the statute, and it is for the defendant to show that greater particularity is required by reason of the omission from the statute of some element of the offense." Ledbetter v. United States, 170 U. S. 606, 612, 18 S. Ct. 774, 776 (42 L. Ed. 1162).
There is no omission of an element here. All that is required of an indictment is that it shall advise the defendant with reasonable certainty of the crime with which he is charged, with averments sufficient to enable him to prepare his defense, and in the event of acquittal to plead the judgment in bar of a second prosecution for the same offense. United States v. Behrman, 258 U. S. 280, 42 S. Ct. 303, 66 L. Ed. 619; Burton v. United States, 202 U. S. 344, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 392; Simpson v. United States (C. C. A.) 289 F. 188.
The indictment here complies with those requirements. It would have been of no possible advantage to the defendant to plead the bills of lading according to...
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United States v. Stoehr, No. 12000 C. D.
...they then solely determine whether it is sufficient to convince them. Wigmore, § 2549, p. 499; Dell'Aira v. United States, 9 Cir., 1926, 10 F.2d 102, at page 106. Included in our definition was the test introduced into the law by Starkie in his Treatise on Evidence, and contained in the cha......
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Troutman v. United States, No. 1671
...Ed. 1097; Ackley v. United States, 8 Cir., 200 F. 217; Simpson v. United States, 9 Cir., 229 F. 940; Dell Aira v. United States, 9 Cir., 10 F.2d 102; Chapman v. United States, 5 Cir., 10 F.2d 124; O'Neill v. United States, 8 Cir., 19 F.2d 322; 100 F.2d 632 Poffenbarger v. United States, 8 C......
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Toho Bussan Kaisha, Ltd. v. American President Lines
...mislead an innocent person is enough to establish the alternative requirement of intent to defraud. Dell'Aira v. United States, 9 Cir., 10 F.2d 102, 105-106. Plaintiff was one of the class, obviously intended to be protected by this Act. See Olivier Straw Goods Corporation v. Osaka Shosen K......
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Hirsch v. Immigration and Naturalization Service, No. 17666.
...by long usage, the pleading may be, and in this case is, in the conjunctive. (See, e. g., Dell'Aira v. United States, 9 Cir., 1926, 10 F.2d 102, 105; Smith v. United States, 5 Cir., 1956, 234 F.2d 385, 389) Thus Item 3 does not support the order of The evidence upon which the Board relied w......
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United States v. Stoehr, No. 12000 C. D.
...they then solely determine whether it is sufficient to convince them. Wigmore, § 2549, p. 499; Dell'Aira v. United States, 9 Cir., 1926, 10 F.2d 102, at page 106. Included in our definition was the test introduced into the law by Starkie in his Treatise on Evidence, and contained in the cha......
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Troutman v. United States, No. 1671
...Ed. 1097; Ackley v. United States, 8 Cir., 200 F. 217; Simpson v. United States, 9 Cir., 229 F. 940; Dell Aira v. United States, 9 Cir., 10 F.2d 102; Chapman v. United States, 5 Cir., 10 F.2d 124; O'Neill v. United States, 8 Cir., 19 F.2d 322; 100 F.2d 632 Poffenbarger v. United States, 8 C......
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Toho Bussan Kaisha, Ltd. v. American President Lines
...mislead an innocent person is enough to establish the alternative requirement of intent to defraud. Dell'Aira v. United States, 9 Cir., 10 F.2d 102, 105-106. Plaintiff was one of the class, obviously intended to be protected by this Act. See Olivier Straw Goods Corporation v. Osaka Shosen K......
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Hirsch v. Immigration and Naturalization Service, No. 17666.
...by long usage, the pleading may be, and in this case is, in the conjunctive. (See, e. g., Dell'Aira v. United States, 9 Cir., 1926, 10 F.2d 102, 105; Smith v. United States, 5 Cir., 1956, 234 F.2d 385, 389) Thus Item 3 does not support the order of The evidence upon which the Board relied w......