Doyle v. United States

• Decision Date: 12 June 1963
• Docket Number: No. 17110.,17110.
• Citation: 318 F.2d 419
• Parties: Dolores M. DOYLE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

318 F.2d 419 (1963)

Dolores M. DOYLE, Appellant, v. UNITED STATES of America, Appellee.

No. 17110.

United States Court of Appeals Eighth Circuit.

June 12, 1963.

Theodore F. Schwartz, Clayton, Mo., made argument for the appellant and Charles M. Shaw, Clayton, Mo., filed brief.

Donald L. Schmidt, Asst. U. S. Atty., St. Louis, Mo., made argument for the appellee and Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., was with him on the brief.

Before VOGEL, VAN OOSTERHOUT and RIDGE, Circuit Judges.

VOGEL, Circuit Judge.

Dolores M. Doyle, appellant, was indicted, tried by a jury and convicted of having violated the provisions of 29 U. S.C.A. § 501(c), which deals with the embezzlement, theft, conversion, etc., of assets of a labor organization by an officer or employee thereof. She was sentenced to a period of confinement of 18 months. Appeal followed. In asking this court to set aside the judgment and direct appellant's acquittal, three contentions are made which will be dealt with in the order in which they appear in appellant's brief.

Appellant's first contention is that:

"The indictment is fatally defective in that it fails to allege that the appellant acted with felonious intent and further fails to secure the accused the right to plead a former acquittal or conviction to a second prosecution."

The statute under which the indictment was drawn and which the appellant is charged with having violated is: 29 U.S.C.A. § 501(c):

"Any person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use, or the use of another, any of the moneys, funds, securities, property, or other assets of a labor organization of which he is an officer, or by which he is employed, directly or indirectly, shall be fined not more than $10,000 or imprisoned for not more than five years, or both."

The indictment, which was in one count, provided as follows:

"The Grand Jury charges:

"That between on or about September 14, 1959 and on or about December 31, 1960, at St. Louis, Missouri, within the Eastern Division of the Eastern District of Missouri,

Dolores M. Doyle

while employed by St. Louis Printing Pressmen and Assistants Union Number 6, Incorporated (Local 6) of St. Louis, Missouri, did embezzle, steal, or unlawfully and willfully abstract or convert to her own use, or the use of another, the sum of approximately $16,156.92 of the moneys, funds, property and assets of the St. Louis Printing Pressmen and Assistants Union Number 6, Incorporated (Local 6), a labor organization engaged in an industry affecting commerce as defined by Section 402(i) and 402(j), Title 29, United States Code.

"In violation of Section 501(c), Title 29, United States Code."

With reference to the claim that the indictment fails to secure appellant's right to plead former jeopardy to a second prosecution, it should be noted that the indictment specifically embraces the elements of the offense provided for in the statute. We further believe that it adequately and fully informs the appellant of the charge against her so that she could prepare to defend. It is also sufficiently specific in identifying the crime so that a conviction or acquittal thereof could be grounds for the defense of double jeopardy in the event of a similar charge against her in the future. It charges that at the times specified the appellant did embezzle, steal or unlawfully and willfully abstract or convert to her own use or the use of another money of the labor organization of which she was an employee and that this occurred while she was so employed, all in violation of the identified statute.

In Hagner v. United States, 1932, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861, the Supreme Court said:

"* * * The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, `and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.\' Cochran and Sayre v. United States, 157 U.S. 286, 290 15 S.Ct. 628, 39 L.Ed. 704; Rosen v. United States, 161 U.S. 29, 34 16 S.Ct. 434, 40 L.Ed. 606."

Judge John Sanborn, in Hewitt v. United States, 8 Cir., 1940, 110 F.2d 1, certiorari denied, 310 U.S. 641, 60 S.Ct. 1089, 84 L.Ed. 1409, said at page 6 of 110 F.2d:

"The sufficiency of an indictment should be judged by practical, and not by technical, considerations. It is nothing but the formal charge upon which an accused is brought to trial. An indictment which fairly informs the accused of the charge which he is required to meet and which is sufficiently specific to avoid the danger of his again being prosecuted for the same offense should be held good." (Emphasis presently supplied.) See also Hanf v. United States, 8 Cir., 1956, 235 F.2d 710, 713-714, certiorari denied, 352 U.S. 880, 77 S.Ct. 102, 1 L.Ed.2d 81; and Keys v. United States, 8 Cir., 1942, 126 F.2d 181, certiorari denied, 316 U.S. 694, 62 S.Ct. 1296, 86 L. Ed. 1764.

As to the assertion that the indictment is defective in that it fails to allege that the appellant acted with felonious intent, reliance is had mainly upon Morissette v. United States, 1952, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288. That case did not deal with the sufficiency of the indictment and is not authority for appellant's contentions here. True, the indictment in Morissette did not specifically allege felonious intent but the reversal therein was not predicated upon that ground. The case holds that criminal intent was an essential element of an offense under 18 U.S.C.A. § 641 which provided that:

"Whoever embezzles, steals, purloins, or knowingly converts * *."

property of the United States shall be punished, etc. The trial judge there withdrew the issue of intent from the jury on the ground that the law raises a presumption of intent from the commission of the act. Holding this to be reversible error, the Supreme Court stated at pages 273-274 of 342 U.S., page 255 of 72 S.Ct.:

"As we read the record, this case was tried on the theory that even if criminal intent were essential its presence (a) should be decided by the court (b) as a presumption of law, apparently conclusive, (c) predicated upon the isolated act of taking rather than upon all of the circumstances. In each of these respects we believe the trial court was in error.

"Where intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury. * * *"

In a complete and accurate charge, Judge Regan in this case told the jury, inter alia:

"You will note that in the indictment, as well as in the statute, the words `willfully\' and `unlawfully\' are used.

"You are advised that the word `willfully\' as used, means intentionally, that is, not accidentally.

"The word `unlawfully\' as used means without legal justification, or without authority of law.

"The question of intent is a matter for you, as jurors, to determine, and as intent is a state of mind and it is not possible to look into a man\'s mind to see what went on, the only way you have of arriving at the intent of the defendant in this case is for you to take into consideration all of the facts and circumstances shown by the evidence, including the exhibits, and determine from all such facts and circumstances what the intent of the defendant was at the time in question.

"Thus, direct proof of willful or wrongful intent or knowledge is not necessary. Intent and knowledge may be inferred from acts and such inferences may arise from a combination of acts, although each act standing by itself may seem unimportant. These are questions of fact to be determined from all of the circumstances."

We think it clear from the foregoing that Judge Regan treated the element of criminal intent as an essential part of the offense and that the case was tried and submitted to the jury with intent being a prerequisite to conviction. The jury obviously found and the record amply supports the conclusion that the appellant at the time of the commission of the acts charged possessed the intent to embezzle, steal or unlawfully and willfully abstract or convert money of the labor organization.

The indictment herein meets every requirement of Rule 7(c) of the Federal Rules of Criminal Procedure, 18 U.S. C.A., and of the cases wherein the sufficiency of an indictment has been challenged and we therefore find it not vulnerable to appellant's first claim of error.

Appellant next contends that:

"The indictment fails to charge with sufficient legal certainty the necessary facts to establish the crime of embezzlement."

Appellant argues, in support of such contention, that:

"* * * The indictment fails to set out the fiduciary capacity of the appellant and her relation to the money and funds of the Pressmen\'s Union. This relation is necessary to distinguish a knowing conversion or unauthorized use from a felonious embezzlement."

Appellant cites Moore v. United States, 1895, 160 U.S. 268, 16 S.Ct. 294, 40 L.Ed. 422, and Shaw v. United States, 6 Cir., 1908, 165 F. 174. In each of such cases the defendant was charged with embezzling certain property while employed in the Postal Service of the United States. The indictments were held insufficient on the ground that it was necessary to allege the capacity in which the property was received in order to support a conviction of embezzlement. The indictment with which we are here concerned, however, does not simply allege that the defendant embezzled certain property while employed by the union but goes farther and charges, "* * * did embezzle, steal, or unlawfully and willfully abstract or convert to her own use, * * *." The Supreme Court of the United States in United States v. Northway, 188...