Edwards v. United States
| Decision Date | 08 April 1920 |
| Docket Number | 1737. |
| Citation | 266 F. 848 |
| Parties | EDWARDS v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fourth Circuit |
C. F Haynsworth and Oscar K. Mauldin, both of Greenville, S.C. (H J. Haynsworth, of Greenville, S.C., on the brief), for plaintiff in error.
C. G Wyche, Asst. U.S. Atty., of Greenville, S.C. (J. William Thurmond, U.S. Atty., of Edgefield, S.C., on the brief), for the United States.
Before PRITCHARD and KNAPP, Circuit Judges, and WADDILL, District judge.
This was a criminal action tried in the District Court of the United States for the Western District of South Carolina. The facts may be epitomized as follows:
Early in the year 1919, it was publicly announced that Camp Sevier located five miles from the city of Greenville, would be abandoned. Following this there was a general movement of troops from the camp. The last remaining regiment, the 89th, was removed the later part of March, leaving only a few guards at the camp site for the protection of government property.
It is insisted by counsel: That plaintiff in error (defendant below), who was a prosperous farmer, lived on lands adjoining the camp site, and about a half mile distant therefrom. A part of the land occupied by the 89th belonged to the defendant, having been leased by him to the government. On this part of the land there was an open shed, in which a few bales of hay were left on the withdrawal of the troops. That he was accustomed to pass several times each week along a road running by this shed. He had seen the hay, and claimed that he thought it had been abandoned. That on or about sundown on the evening of April 22, 1919, the defendant, in driving by this open shed, loaded into his wagon six bales of hay. At this point a guard came up from behind the shed and asked the defendant about taking the hay. The defendant stated that he thought the hay had been abandoned and offered to return it. The arrest and indictment of the defendant followed.
The following is a copy of the three counts contained in the indictment:
First Count.
'That heretofore one Perry Edwards, to wit, on the 22d day of April, A.D. 1919, at Camp Sevier, in the county of Greenville, state of South Carolina, Western district of South Carolina, and within the jurisdiction of this court, did willfully, unlawfully, and feloniously steal certain property of the United States, to wit, six bales of hay, of the value of fifteen dollars, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the United States of America.'
Second Count.
'That heretofore one Perry Edwards, to wit, on the 22d day of April, A.D. 1919, at Camp Sevier, in the county of Greenville, state of South Carolina, Western district of South Carolina, and within the jurisdiction of this court, did willfully, unlawfully, and feloniously steal certain property of the United States, to wit, six bales of hay, of the value of fifteen dollars, which said property had theretofore been furnished for the military service of the United States, and was to be used for said military service, contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States of America.'
Third Count.
'That heretofore one Perry Edwards, to wit, on the 22d day of April, A.D. 1919, at Camp Sevier, in the county of Greenville, state of South Carolina, Western District of South Carolina, and within the jurisdiction of this court, willfully, unlawfully, and feloniously did knowingly apply to his own use certain property of the United States, which said property had theretofore been furnished for the military service of the United States, and was to be used for said military service, contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States of America.'
The indictment was drawn under section 9714, Barnes' Fed. Code (Comp. St. Sec. 10200), which reads as follows:
'Whoever shall steal, embezzle, or knowingly apply to his own use, or unlawfully sell, convey, or dispose of any ordinance, arms, ammunition, clothing, sustenance, stores, money, or other property of the United States furnished or to be used for the military or naval service, shall be punished as in the preceding section.'
In the first and second counts it is alleged that the defendant 'did willfully, unlawfully, and feloniously steal certain properties of the United States, to wit, six bales of hay, of the value of fifteen dollars. ' In the third count it is alleged that the defendant 'willfully, unlawfully, and feloniously did knowingly apply to his own use certain property of the United States, which said property had theretofore been furnished to the military service of the United States, and was to be used for such service.'
There was a verdict of not guilty as to the first and second counts, but the jury found the defendant guilty on the third count. This verdict, to say the least, was contradictory and inconsistent. The jury having disposed of the first and second counts, the only remaining point is as to whether the court erred in the trial as respects the third count.
It is insisted by counsel that the third count charges no offense, and in reply to this proposition counsel for the government insists that this point should have been raised on a motion in arrest of judgment, and therefore it is too late for the court to consider this. However, it is urged we should consider the same under rule 11 (233 F. vii, 146 C.C.A. vii), as well as the general practice.
Writs of error lie to correct errors apparent on the record, even though no motion in arrest was filed in the court below. In the case of State v. Rosenblatt, 185 Mo. 114, 83 S.W. 975, it was said:
In Bishop's New Criminal Procedure (2d Edition) vol. 2, p. 1180, under section 1368, it is said:
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...taken is the same as that upon which the indictment was found. 32 Am.Jur., Larceny, § 106; 27 Am.Jur., Indictments, § 83; Edwards v. United States, 4 Cir., 266 F. 848. Under this rule the indictment in this case was technically insufficient but it does not follow that the defect was so grav......
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