Dell'Aira v. United States

• Decision Date: 18 January 1926
• Docket Number: No. 4612.,4612.
• Citation: 10 F.2d 102
• Parties: DELL'AIRA v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

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. The allegations meet the requirement that the crime must be charged with precision and certainty, and that every ingredient of which it is composed must be accurately and clearly alleged. It was not necessary to charge in the language of the statute that the bills of lading were issued by a common carrier. It was sufficient that the fact appeared distinctly from other averments. Cohen v. United States (C. C. A.) 294 F. 488; Hill v. United States (C. C. A.) 275 F. 187.

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 their tenor. The very fact that the common-law rule is dispensed with in cases where the instrument is lost or destroyed is proof that the rule relates not to substance but to form, and if the failure to comply with it is a defect, it is one of those defects which under the statutes and decisions an appellate federal court, after verdict, is bound to disregard.

We find no merit in the contention that the indictment is defective in not alleging in each count that the defendant knew that the original bill of lading was forged and altered when he took it to the diversion agent and procured the issuance of a new one, or when he subsequently negotiated the latter. The indictment charges in each count that the defendant unlawfully, willfully, knowingly, and feloniously altered the bill of lading with intent to defraud, and that with like intent he took it to the diversion agent, and procured the issuance of a new bill of lading, and thereafter negotiated and transferred the latter for value to a person named. It was not necessary to allege that he knew what he was doing. His knowledge is necessarily inferable from his acts. 31 C. J. 695; United States v. Schuler, 6 McLean, 28, Fed. Cas. No. 16,234; United States v. Jolly (D. C.) 37 F. 108. In the case last cited Judge Hammond said: "One may pass a forged instrument innocently, because he does not know it to be forged, and believes it to be genuine; but one cannot innocently make or himself forge the instrument without guilty knowledge of the fact of the want of genuineness, if his intention be `to defraud,' in the language of the statute."

Nor is it defective for failure to state the name of the person whom the defendant caused to make, alter, and forge the original bill of lading. Each count contains the distinct allegation that the defendant himself made the alterations. United States v. Simmons, 96 U. S. 360, 24 L. Ed. 819, is not in point. It holds that, if the defendant is not charged with...