Denny v. United States

• Decision Date: 05 November 1945
• Docket Number: No. 5400,5401.,5400
• Citation: 151 F.2d 828
• Parties: DENNY v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

151 F.2d 828 (1945)

DENNY v. UNITED STATES.

Nos. 5400, 5401.

Circuit Court of Appeals, Fourth Circuit.

November 5, 1945.

Isaac Lobe Straus and Eugene O'Dunne, both of Baltimore, Md. (Hamilton O'Dunne and Bernard M. Goldstein, both of Baltimore, Md., on the brief), for appellant.

Bernard J. Flynn, U. S. Atty., of Baltimore, Md., for appellee.

Before SOPER, DOBIE, and NORTHCOTT, Circuit Judges.

SOPER, Circuit Judge.

William B. Denny, defendant in the District Court, was convicted in two cases that were tried together, one for conspiring to evade military service under the provisions of the Selective Training and Service Act of 1940, § 11, 50 U.S.C.A. Appendix, § 311, and the other for making false statements as to fitness for service under that Act. He was sentenced to serve two years in the first case and five years in the second, the sentences to run concurrently. This appeal questions (1) the sufficiency of the indictments; (2) the sufficiency of the evidence; and (3) the admissibility of a confession wherein the defendant said that he had paid one Chester T. Ruby $250 to secure for him a 4-F classification.

We consider first the sufficiency of the indictments. The conspiracy indictment charged in substance that Ruby and Denny did feloniously combine, conspire, confederate and agree together to cause the evasion by Denny of service in the land and naval forces under the provisions of the statute, and that in pursuance of the conspiracy, the defendants committed certain overt acts among which it was charged that Ruby met Denny at a certain parking lot in Baltimore, Maryland and instructed him "as to statements he should make to the examining psychiatrists at the time he reported for his physical examination at the Induction Center, to-wit, he was to state that he was a high school graduate, in order to avoid taking the mental qualifications test; to exaggerate his nervous condition; to state that he did not want to be with people."

This indictment is said to be defective because it fails either to allege generally that Denny was subject to the provisions of the Act or to state specifically that he was a male person between the ages of eighteen and forty-five, and therefore liable for training and services in the armed forces of the United States under the terms of the statute. 50 U.S.C.A.Appendix, § 303. It is contended that this omission is a fatal defect in that it leaves out of the indictment one of the essential ingredients of the crime, since it does not appear with certainty whether or not the defendant belonged to the group of persons subject to the requirements of the statute. Moreover, it is contended that the charge is fatally vague and ambiguous because it does not specify whether the evasion contemplated by the conspirators was to be accomplished by making a false registration or making false statements in regard to the fitness of the defendant for service. For these reasons it is urged that the demurrer to the indictment should have been sustained in conformity with the ruling made in such cases as Ruthenberg v. United States, 245 U.S. 480, 38 S.Ct. 168, 62 L.Ed. 414; Keegan v. United States, 65 S.Ct. 1203; United States v. Blakeman, D.C.N.D.N.Y., 251 F. 306; Caldwell v. United States, 5 Cir., 139 F.2d 121.

We are of opinion that the indictment was sufficient in that it apprised the defendant of all that he needed to know for his defense, and was sufficiently specific so that he was in no danger of being put a second time in jeopardy. If these essentials are met, a criminal pleading is sufficient. The great technicality that formerly prevailed in this branch of the law has been relaxed and the federal courts now generally hold that the sufficiency of criminal pleadings is to be determined on the basis of practical rather than technical considerations. Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861; United States v. Polakoff, 2 Cir., 112 F.2d 888, 134 A.L.R. 607; Phipps v. United States, 4 Cir., 251 F. 879; Martin v. United States, 4 Cir., 299 F. 287; Nye v. United States, 4 Cir., 137 F.2d 73. As pointed out in these and other cases, courts are admonished by the Acts of Congress relating to criminal procedure, 18 U.S.C.A. § 556, that no indictment presented by a grand jury in any court of the United States shall be deemed insufficient by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant. This rule was applied in a situation similar to that in the pending case in Hopper v. United States, 9 Cir., 142 F.2d 167, 169, wherein the indictment in a case under the Selective Training and Service Act was charged to be defective, in that it failed to expressly state that the defendant belonged to the limited class of persons subject to selective service; but on rehearing, 142 F.2d 181, the indictment was held to be good. We do not mean to give our approval to a form of indictment which omits a pertinent allegation so easily made as that omitted in the pending case, especially as it serves to provoke unnecessarily the sort of technical objection now under consideration; but it is obvious that the defendant has suffered no prejudice by the failure to state a fact so well known to him as his own age, or his amenability to the provisions of the statute. If he were in need of more specific details, he could have applied for a bill of particulars. For these reasons we hold the conspiracy indictment to be sufficient.

The second indictment charged in substance that Denny, being a person duly registered and classified under and in accordance with the provisions of the Selective Training and Service Act of 1940 as amended, 50 U.S.C.A.Appendix, § 301 et seq., and the rules, regulations and directions made pursuant thereto, did knowingly, wilfully, unlawfully and feloniously make false statements as to his fitness for service under the provisions of the Act to officials of the Induction Center in that he falsely stated to said officials that he was a high school graduate in order to avoid taking the mental qualifications test. The indictment also contained the concluding clause that the defendant gave other false information which was intended to cause his rejection for service in the land and naval forces of the United States. This last clause is obviously so vague that it gave the defendant no information as to the specific charge he was to meet, added nothing to the allegations previously set out and may be rejected as surplusage. The defendant, however, contends that the charge contained in the prior allegations of the indictment was too broad and ambiguous in that it did not allege that the false statement attributed to him related to fitness for service, but merely showed his purpose or motive in making the statement. We regard this objection as hypercritical, for it seems to us that the indictment clearly shows that the false statement alleged related to and bore upon the defendant's fitness for service, and that he must have so understood it. We therefore hold that the second indictment was valid.

The objection of the defendant to the sufficiency of the evidence in support of the two charges rests in the main upon three grounds. First, it is said that the evidence was insufficient to show that the defendant had stated in the course of his examination at the induction station that he was a high school graduate. The defendant testified that when he was asked during the examination how far he had gone in school he answered "as far as high school", and the contention is that this is the only definite evidence on the point. The evidence, however, includes a printed form on which certain mental and physical characteristics of the defendant were noted by the examining officers during the course of the examination. This sheet bore the initials "H S" and the testimony tended to show that they were written by a yeoman stationed at the Armory whose duty it was to inquire of each of the inductees as to his educational qualifications and who made it a practice to insert the initials "H S" when the inductee stated that he was a graduate of a high school. The testimony of the government also showed, as will hereafter appear, that Ruby instructed the defendant to state that he was a high school graduate when questioned during his examination. It is obvious that the evidence in regard to the defendant's false statement in question was substantial and sufficient to go to the jury.

Second, the defendant contends that the government failed to prove the second essential element of the substantive crime, to-wit, that the false statement related to the defendant's fitness for service in the land or naval forces. This defense is based upon the testimony of one of the examining psychiatrists who testified that he did not take the false statement into consideration in determining the mental condition of Denny and also upon the testimony of Ruby that graduation from high school was not a cause for the inductee's rejection. It is obvious, nevertheless, that the defendant's answer as to his educational history did bear upon his fitness for military or naval service. Each inductee was examined with reference to his educational qualifications and it needs no argument to show that they had a direct bearing upon his fitness for service in the armed forces. Moreover, further testimony of Ruby indicates the particular bearing of the false statement of the defendant in the pending case and its relation to the conspiracy and the purpose of the defendant to evade service. Ruby testified that the purpose of the false statement was to get the defendant out of the station as soon as possible so as to avoid a mental examination which otherwise might consume thirty to fifty minutes. Such an examination might readily have disclosed material facts or characteristics of the defendant...