Donnell v. United States
Citation | 229 F.2d 560 |
Decision Date | 27 January 1956 |
Docket Number | No. 15446.,15446. |
Parties | B. M. DONNELL, Appellant, v. UNITED STATES of America, Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
James L. Drought, San Antonio, Tex., for appellant.
Harman Parrott, Asst. U. S. Atty., San Antonio, Tex., for appellee.
Before HOLMES, RIVES and CAMERON, Circuit Judges.
The one narrow question involved in this appeal is whether appellant's intention in absenting himself from the jurisdiction of the court where the crime with which he was charged was committed is material and is a question of fact which should be submitted to the jury for its determination or is a question of law under the facts of this case, to be decided by the Court. Appellant, B. M. Donnell, was convicted on an indictment charging him with violation of 18 U.S.C.A. § 1001 by the making of false representations in a matter within the jurisdiction of the Veterans Administration.
The indictment charged that appellant committed the acts in question in July, August and September of 1948, more than three years before it was returned in October, 1951. During that period appellant had engaged in a number of activities including the construction business, import-export, recruiting for a voluntary group to fly in the Korean War, and operating a wholesale lumber business; and appellant was, on several occasions, outside the judicial district of the alleged crime, having spent more than a year of this time in Honduras.
Appellant moved to dismiss the indictment on the ground that it was not returned within three years after the offense charged had been committed, and that the Statute of Limitations1 barred the prosecution. The motion was denied, the Court below holding "that as a matter of law the statute of limitations was tolled as to the defendant herein by virtue of his being without the jurisdiction of this court, and that the intent of the defendant in so leaving and remaining without the jurisdiction is immaterial * * *".2
There is a line of cases supporting this position taken by the Government and justifying the ruling of the Court below,3 but we do not think this line of cases announces the correct rule or the rule established by the Supreme Court and followed by this Court; nor do we think that the language of the statute itself supports this position.
The prime rule of statutory construction is that its words should be given the meaning they would evoke in the common mind. 4
In Webster's New World Dictionary of the American Language, College Edition, the first meaning given to the intransitive verb "flee" is, The statute above quoted carries the connotation that only those persons shall be denied the benefit of the Statute of Limitations who have absented themselves from the jurisdiction of the crime with the intent of escaping prosecution. The Supreme Court has made but one declaration on the subject, — Streep v. United States, 1895, 160 U.S. 128, 16 S.Ct. 244, 246, 40 L.Ed. 365. A slightly different facet of the subject of the tolling of the Statute of Limitations was there dealt with but its pronouncement was clear and unequivocal in its adherence to the dictionary definition above quoted.
In the Streep case the indictment was found more than three years after the crime charged had been committed. Shortly after its commission Streep had been indicted also in a state court where his bail was later forfeited because of his failure to appear. There was testimony at the trial tending to show that Streep went to Europe to avoid the forthcoming prosecution in the state court. The jury was charged that if they believed this evidence, then the defendant was a "fugitive from justice" within the meaning of the statute under consideration. The trial court declined to direct an acquittal or to give an instruction to the effect that, in order to be a fugitive from justice, the defendant must have been fleeing the justice of the United States and not that of the state court.
In affirming, the Supreme Court held that it was unnecessary that a person have in mind avoiding the justice of any particular court in order to be a fugitive within the meaning of the statute. Nevertheless, it was clearly recognized that the general intention of the defendant in leaving the jurisdiction is material and is an indispensable aspect in considering whether he was, while outside the jurisdiction, a fugitive from justice. The following disconnected quotations gathered from the opinion 160 U.S. at pages 133- 135, 16 S.Ct. at page 246, demonstrate the correctness of this statement:
This Court has had before it two cases dealing with the subject,5 and, in each instance, we accepted as the law the quoted language of the Streep case. In Porter's case he made the effort to induce the trial court to charge as a matter of law that the prosecution was barred by limitations when admittedly he had spent quite a period outside the jurisdiction of the court. We affirmed the trial court's action in rejecting that contention, stating, 91 F. at page 497:
After quoting from the Streep case some of the language set forth above to the effect that "`it is quite clear that any person who takes himself out of the jurisdiction, with the intention of avoiding being brought to justice for a particular offense, can have no benefit of the limitation'", emphasis added we stated: "The counsel for the plaintiff in error seem to have proceeded upon the false theory that, to constitute fleeing from justice, under section 1045, id., a person must not only have left the jurisdiction of the court for the purpose of avoiding a prosecution, but that he must besides be found within the territory of another court."
The Greene case 154 F. 411 presented quite involved facts and the decision and dissent take up twenty-three pages in the Federal Reporter, and no good purpose will be served by making an extended examination of the facts. It is sufficient to say that we held that the question of intent which lay behind the flight was a proper one to submit to the jury, calling upon the Streep opinion for our authority:
Emphasis added.
Brouse v. United States, 1933, 68 F.2d 294, is a well reasoned case wherein the First Circuit cited our Greene case and the Streep case as authority for this same construction of the statute. The question of absence from the jurisdiction was submitted to the trial court, which found the question of intent in favor of the Government and the Court of Appeals affirmed, using in part this language:
"Whether a person is during any given period a fugitive from justice in the federal courts is, as these decisions make clear, a question of fact to be determined from his acts and intent. * * *
* * *"At page 296.
Thereupon the Court of Appeals set out in some detail the facts concerning Brouse's intent in absenting himself from the jurisdiction, all of which pointed to the fact that his absence was dedicated to the purpose of avoiding prosecution. The Court concludes...
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U.S. v. Owens, Criminal Action No. 95-10397-WGY.
...a jury must decide whether or not they were "fleeing from justice" within the meaning of section 3290. See Donnell v. United States, 229 F.2d 560, 565 (5th Cir. 1956) ("... in determining whether a person charged with a crime will be denied the right to be protected by the statute of limita......
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United States v. Marion 8212 19
...United States v. Wilson, 342 F.2d 782, 783 (CA5), cert. denied, 382 U.S. 860, 86 S.Ct. 119, 15 L.Ed.2d 98 (1965); Donnell v. United States, 229 F.2d 560, 567 (CA5 1956); Harlow v. United States, 301 F.2d 361, 366 (CA5), cert. denied, 371 U.S. 814, 83 S.Ct. 25, 9 L.Ed.2d 56 (1962); Bruce v. ......
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U.S. v. Singleton
...See, e.g., United States v. Wazney, 529 F.2d 1287 (9th Cir.1976); Jhirad v. Ferrandina, 486 F.2d 442 (2d Cir.1973); Donnell v. United States, 229 F.2d 560 (5th Cir.1956). The Ninth Circuit in Wazney stated that physical absence from the jurisdiction is not required to trigger the tolling pr......
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