Egan v. United States

• Citation: 287 F. 958
• Decision Date: 05 March 1923
• Docket Number: 3868.
• Parties: EGAN v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

287 F. 958

EGAN v. UNITED STATES.

No. 3868.

United States Court of Appeals, District of Columbia.

March 5, 1923

Submitted December 12, 1922.

Appeal from the Supreme Court of the District of Columbia. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

T. M Wampler, of Washington, D.C., for appellant.

Peyton Gordon and J. H. Bilbrey, both of Washington, D.C., for the United States.

Before VAN ORSDEL, Associate Justice, and MARTIN and SMITH, Judges of the United States Court of Customs Appeals.

VAN ORSDEL, Associate Justice.

Appellant defendant below, a law clerk in the Bureau of Internal Revenue, was indicted under sections 113 and 117 of the United States Penal Code (Comp. St. Secs. 10283, 10287). Section 113 provides that:

'Whoever, * * * being the head of a department, or other officer or clerk in the employ of the United States, shall, directly or indirectly, receive, or agree to receive, any compensation whatever for any services rendered or to be rendered to any person, either by himself or another, in relation to any proceeding, contract, claim, controversy, charge, accusation. arrest, or other matter or thing in which the United States is a party or directly or indirectly interested, before any department, court-martial, bureau, officer, or any civil, military, or naval commission whatever shall be fined not more than ten thousand dollars and imprisoned not more than two years.'

Section 117 provides that:

'Whoever, being an officer of the United States, or a person acting for or on behalf of the United States, in any official capacity, under or by virtue of the authority of any department or office of the government thereof, * * * shall ask, accept, or receive any money, or any contract, promise, undertaking, obligation, gratuity, or security for the payment of money, or for the delivery or conveyance of anything of value, with intent to have his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, influenced thereby, shall be fined not more than three times the amount of money or value of the thing so asked, accepted, or received, and imprisoned not more than three years.'

The indictment is in four counts. The first two counts charge an offense under section 113. The first count differs from the second only in that the first count charges the receipt of money, and the second count charges the receipt of a check. The third and fourth counts charge an offense under section 117. The third count differs from the fourth in that the third count charges the receipt of money, and the fourth count charges the receipt of a check. The defendant was convicted upon all four counts, and sentenced under the second count to serve two years in the penitentiary.

The indictment was assailed by motion to quash because in each of the counts of the indictment more than one offense is charged. In each of the first two counts the defendant is charged with 'receiving' or 'agreeing to receive' the forbidden compensation. These constitute separate and distinct offenses. In Burton v. United States, 202 U.S. 377, 26 Sup.Ct. 697, 50 L.Ed. 1057, 6 Ann.Cas. 392, the court, construing section 1782, R.S., incorporated as section 113 of the Penal Code, said:

'It was certainly competent for Congress to make the agreement to receive, as well as the receiving of, the forbidden compensation, separate, distinct offenses. * * * There might be an agreement to receive compensation for services to be rendered without any compensation ever being in fact made, and yet that agreement would be covered by the statute as an offense. Or compensation might be received for the forbidden services without any previous agreement, and yet the statute would be violated.'

It is contended that, being separate offenses, they cannot be included in a single count of the indictment. We are not impressed by this contention. Nor do we think it is supported by the decision in the Burton Case. While in that case the offenses were charged in separate counts, there is no intimation that they may not be embraced in a single count. We think it is optional with the pleader to embrace the distinct offenses in separate counts or in a single count. The objection of duplicity to the first and second counts of the indictment was properly overruled.

Section 117 forbids a public official to ask, accept, or receive any money or other valuable consideration with intent to have his decision or action influenced in any matter pending or which may come before him in his official capacity. In the third count defendant is charged with asking, accepting, and receiving money, and in the fourth count with asking, accepting and receiving a check. It is contended that in each count three separate and distinct offenses are charged which cannot properly be included in a single count. The offense condemned is receiving bribes by a public official. While different offenses are set out in the statute, they may, for the same reason as in section 113, be embraced in a single count, since the proof may well establish either the receiving, the soliciting, or the acceptance of the bribe by the official. They all relate to a single substantive crime.

In Crain v. United States, 162 U.S. 625, 16 Sup.Ct. 952, 40 L.Ed. 1097, the court considered a similar objection, where a defendant had been charged, under section 5421 of the Revised Statutes (Comp. St. Sec. 10193), making it a criminal offense for any one to falsely make, alter, forge, or counterfeit any deed, power of attorney, order, certificate, receipt, or writing, for the purpose of obtaining, receiving, or enabling any other person either directly or indirectly to obtain or receive from the United States any sum of money. The statute also prohibited any person from transmitting or presenting, or causing or procuring to be transmitted or presented, to any person or any officer of the government, any of the documents above enumerated knowing the same to be forged, altered, or counterfeited. The court, holding that the numerous acts forbidden by the statute could be embraced in a single count, said:

'We are of opinion that the objection to the second count upon the ground of duplicity was properly overruled. The evil that Congress intended to reach was the obtaining of money from the United States by means of fraudulent deeds, powers of attorney, orders, certificates, receipts or other writings. The statute was directed against certain defined modes for accomplishing a general object, and declared that the doing of either one of several specified things, each having reference to that object, should be punished. * * * We perceive no sound reason why the doing of the prohibited thing, in each and all of the prohibited modes, may not be charged in one count, so that there may be a verdict of guilty upon proof that the accused had done any one of the things constituting a substantive crime under the statute.'

It is a settled rule in criminal law that proof of so much of an indictment as shows that defendant committed a substantive crime, therein set forth, is sufficient. A count in an indictment charging that the defendant broke and entered a shop with the intention of committing larceny, and did commit larceny, was not defective for duplicity. Commonwealth v. Tuck, 20 Pick. (Mass.) 356. The charge that defendant set up and promoted a certain exhibition without a license was sufficiently set forth in a single count. Commonwealth v. Twitchell, 4 Cush. (Mass.) 74. Likewise a charge in a single count that defendant burned and caused to be burned a building was sustained. State v. Price, 11 N.J. Law, 203, 215. The rule announced by Chitty is as follows:

'If an indictment charge that the defendant did, and caused to be done, a particular act, it is enough to prove either. Thus, under an indictment for forgery, stating that the defendant forged, and caused to be forged, it suffices to prove either.' 1 Chitty's Cr. Law, 251.

There was no error in denying a motion to require the district attorney to elect whether he would go to trial upon the first and second counts or the third and fourth counts of the indictment. This motion was based upon the theory that the indictment included two separate offenses under the Penal Code. This is permissible, and election will not be required, where the offenses charged are not distinct and inconsistent. The crimes defined in sections 113 and 117 belong to the same class, and may be separately charged in a single indictment. In such a case a general verdict of guilty on all the counts will be sustained in error, if any count is good and sufficient to support the judgment. Claassen v. United States, 142 U.S. 140, 12 Sup.Ct. 169, 35 L.Ed. 966; Evans v. United States, 153 U.S. 584, 14 Sup.Ct. 934, 38 L.Ed. 830; Davis v. United States, 37 App.D.C. 126, 133.

Error is assigned upon the refusal of the court below to charge the jury on the law of accomplices. The person alleged to have given the bribe in this case was the principal witness on behalf of the government. Counsel for defendant offered the following prayer:

'The court instructs the jury that the witness Joseph Dudenhoefer is an accomplice, and that his testimony should not be received by the jury as that of an ordinary witness, but ought to be received with suspicion and with the very greatest care and caution.'

The court, refusing all the prayers offered on behalf of the defendant, said:

'I will refuse them all, except as charged. I will charge on presumption of innocence, I will charge on the burden of proof, and I will charge on the question of reputation. I won't give the charge...