Elder v. United States

• Citation: 142 F.2d 199
• Decision Date: 10 January 1944
• Docket Number: No. 10212.,10212.
• Parties: ELDER v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

142 F.2d 199 (1944)

ELDER v. UNITED STATES.

No. 10212.

Circuit Court of Appeals, Ninth Circuit.

January 10, 1944.

A. L. Wirin, of Los Angeles, Cal., for appellant.

Leo V. Silverstein, U. S. Atty., and Howard V. Calverley, Asst. U. S. Atty., both of Los Angeles, Cal., for appellee.

Before GARRECHT, MATHEWS, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

Donald James Elder was convicted in the United States District Court of violating § 11 of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix § 311, by knowingly failing and neglecting to perform a duty required of him. The court sentenced him to prison. He appeals. Appellant in this court for the first time questions the sufficiency of the indictment to state a crime while conceding the sufficiency of the evidence upon which the finding of guilt was based.

The indictment upon which he was tried charges that appellant "* * * on or about February 23, 1942, at Los Angeles, County of Los Angeles, * * * did knowingly, wilfully, unlawfully and feloniously, having theretofore registered under the Selective Training and Service Act of 1940, and having been theretofore notified to report for work of national importance in lieu of induction in the armed forces of the United States, fail and neglect to perform a duty required of him under and in the execution of said Act and the rules and regulations made pursuant thereto, that is to say, the said defendant did then and there knowingly, wilfully, unlawfully and feloniously fail and neglect to report for work of national importance in lieu of induction in the armed forces of the United States, as required and so notified to do."

An indictment is a formal accusation of a person charging that he has committed an illegal act which is denounced by the sovereign as a crime. It must indicate the crime charged, and it must contain a statement of the essential elements of the indicated crime. It must include a recital of the acts alleged to constitute the offense in detail sufficient to bring them within the scope of the offense and sufficient to inform the accused generally of the acts attributed to him and the time of their commission so that he may adequately defend against the charge and so that he may be safeguarded against double jeopardy. Cochran v. United States, 157 U.S. 286, 290, 15 S.Ct. 286, 39 L.Ed. 704; United States v. Cruikshank, 92 U.S. 542, 545, 557, 23 L.Ed. 588; Woolley v. United States, 9 Cir., 97 F.2d 258, 261.

Where an indictment is not challenged in the trial court but is contested for the first time in an appellate court, technical imperfections will be ignored, and if the necessary facts can be drawn by reasonable inference from the allegations of the indictment, it will be considered sufficient, Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861; Kane v. United States, 8 Cir., 120 F.2d 990; Hardesty v. United States, 6 Cir., 168 F. 25. However, if an indictment is defective in substance, that is, if it fails materially in any one of the elements we have stated as being essential, it may be questioned for the first time in this court. Dunbar v. United States, 156 U.S. 185, 15 S.Ct. 325, 39 L.Ed. 390; Harris v. United States, 8 Cir., 104 F.2d 41; Remus v. United States, 6 Cir., 291 F. 513; Shilter v. United States, 9 Cir., 257 F. 724.

Appellant contends that the basic principles stated establish the insufficiency of the indictment. Appellee argues that where the indictment is couched in the terms of the controlling statute and where a purely statutory crime is involved, an allegation in the language of the statute which is fully descriptive of the offense is sufficient. Armour Packing Co. v. United States, 209 U.S. 56, 28 S.Ct. 428, 52 L.Ed. 681; Potter v. United States, 155 U.S. 438, 15 S.Ct. 144, 39 L.Ed. 214; Freeman v. United States, 5 Cir., 86 F.2d 243; Peck v. United States, 7 Cir., 65 F.2d 59. The rule as stated by appellee, however, is subject to the qualification that if the statutory definition of a crime is so general that a pleading in its terms will not serve the purposes of an indictment, then the offense must be stated with greater particularity. United States v. Hess, 124 U.S. 483; United States v. Carll, 105 U.S. 611; Foster v. United States, 9 Cir., 253 F. 481.

The clause of § 11 of the Selective Service and Training Act under which the indictment herein was framed provides for the punishment of any person "who in any manner shall knowingly fail or neglect to perform any duty required of him under or in the execution of this Act, or rules or regulations made pursuant to this Act." The indictment adds to this general statement the recitals that appellant had registered under the Act and had been notified "to report for work of national importance in lieu of induction in the armed forces of the United States," and specifies that his neglect to report for such work was the manner in...