Falgout v. United States
| Decision Date | 27 February 1922 |
| Docket Number | 3683. |
| Citation | 279 F. 513 |
| Parties | FALGOUT et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Fred A Middleton, Chandler C. Luzenberg, and Clarence S. Hebert, all of New Orleans, La., for plaintiffs in error.
Louis H. Burns, U.S. Atty., of New Orleans, La. (W. J. O'Hara Asst. U.S. Atty., of New Orleans, La., on the brief), for the United States.
Before WALKER, BRYAN, and KING, Circuit Judges.
The seven plaintiffs in error (hereinafter referred to as the defendants) were convicted on both of the two counts of the indictment. One of the counts charged that they, at a stated time and place, 'did unlawfully, willfully, knowingly and feloniously take, steal, and carry away from a certain railroad car, to wit, N.P. 22137, which said car was then and there on the tracks of the Texas & Pacific Railroad Company 17 drums of alcohol, which said 17 drums of alcohol were then and there moving as and constituted part of an interstate shipment of freight, that is to say, a shipment of alcohol from the Kentucky Distilleries & Warehouse Company, at Westwego, in the state of Louisiana, to the Lyke Medicine Company, at Kansas City. in the state of Missouri, via the Texas & Pacific Railroad Company, with the felonious intent,' etc.; the value of such alcohol being alleged.
The other count charged that the defendants at the same time and place conspired to commit the offense charged in the first mentioned count; overt acts to effect the object and purpose of such conspiracy being alleged.
The record does not show that a question as to the sufficiency of the indictment was raised in the trial court. In this court the sufficiency of the indictment is questioned on the ground of the absence of an allegation of the ownership of the alcohol which was the subject of the offenses attempted to be charged. The judgment is not subject to be reversed because of a defect or imperfection in the indictment in matter of form only, which does not tend to prejudice the defendants. U.S. Compiled Statutes, Sec. 1691. It is enough to defeat the above-mentioned contention, first made in this court, if the indictment stated the elements of the offenses with sufficient particularity fully to advise the defendants of the crimes charged, and to enable the conviction or acquittal to be pleaded in bar of a subsequent prosecution for the same offenses. New York Central & H.R.R. Co. v. United States, 212 U.S. 481, 29 Sup.Ct. 304, 53 L.Ed. 613. The allegations as to time and place, as to the number and initials of the car from which the described alcohol was stolen or conspired to be stolen, as to the name of the carrier, and as to the names and addresses of the consignor and consignee, fully identified the shipment which was the subject of the offenses charged. The averments of the indictment were sufficient to meet the above-stated requirements. Bloch v. United States (C.C.A.) 261 F. 321.
At the time stated in the indictment one of the defendants, Aubert Tassin, was the foreman of a switching engine and crew of the Texas & Pacific Railroad Company. On the night of November 27, 1920, three cars, one being car No. N.P. 22137 containing 17 drums of alcohol, were taken from the Kentucky Distillery by the switch engine under Tassin's control, and about 9 p.m. left on the main line of the Texas & Pacific Railroad a short distance from the junction of the Kentucky Distillery spur track with the main line. The engine, after it was uncoupled from the car containing the alcohol, proceeded to the Gillican & Chipley plant, about 1,500 feet farther away from the Texas & Pacific terminal yards. After the engine did some switching at the Gillican & Chipley plant, it proceeded back on the main line, took up the cars left thereon, and moved them to the terminal yards. There was evidence tending to prove that, between the time the engine so left the three cars on the main line and the time it returned thereto, the plaintiffs in error, other than Tassin, participated in taking from said car N.P. 22137 the 17 drums of alcohol; that car being resealed after the alcohol was taken from it. There was evidence having some tendency to prove that the leaving of that car at the place where its contents were stolen...
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Smith v. Smith, Civ. A. No. 14304
...established beyond a reasonable doubt. Long ago the Fifth Circuit properly stated the posture of the alibi defense. In Falgout v. United States, 279 F. 513 (5th Cir. 1922), the Court "By adducing that evidence of alibi the defendants did not assume any burden of proof. After, as well as bef......
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Stump v. Bennett
...67 F.2d 329, 330 (2 Cir. 1933) (dictum); United States v. Marcus, 166 F.2d 497, 503-504 (3 Cir. 1948); Falgout v. United States, 279 F. 513, 515, 29 A.L.R. 1115 (5 Cir. 1922); Cangelosi v. United States, 19 F.2d 923 (6 Cir. 1927); Glover v. United States, 147 F. 426, 430-433 (8 Cir. 1906); ......
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State v. Stump
...L.Ed. 343; United States v. Vigorito, 67 F.2d 329 (2nd Cir., 1933), cert. den. 290 U.S. 705, 54 S.Ct. 373, 78 L.Ed. 606; Falgout v. United States, 5 Cir., 279 F. 513; McCool v. United States, 6 Cir., 263 F. 55; Fielder v. United States, 142 C.C.A. 356, 227 F. 832; and Glover v. United State......
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Smith v. Smith, 71-1311.
...whether the evidence as a whole on the issue of presence proves the defendant's guilt beyond a reasonable doubt. See Falgout v. United States, 5th Cir. 1922, 279 F. 513. We likewise find the Georgia instruction to be no less mandatory than the Iowa charge. Georgia instructs, "Alibi as a def......