Hagner v. United States

• Decision Date: 23 November 1931
• Docket Number: No. 5410.,5410.
• Citation: 54 F.2d 446,60 App. DC 335
• Parties: HAGNER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

60 App. DC 335, 54 F.2d 446 (1931)

HAGNER et al. v. UNITED STATES.

No. 5410.

Court of Appeals of the District of Columbia.

Argued October 8, 1931.

Decided November 23, 1931.

Rehearing Denied December 5, 1931.

Lucien H. Van Doren, of Washington, D. C., for appellants.

Leo A. Rover, William H. Collins, and Michael F. Keough, all of Washington, D. C., for the United States.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

GRONER, Associate Justice.

Appellants were indicted and tried in the Supreme Court of the District of Columbia for violating section 215, United States Criminal Code (USCA tit. 18, § 338). The indictment contained a number of counts. The first is typical of the others. After describing a scheme and artifice to defraud through the sale of certain false accounts-receivable, it alleged "that the said defendants (appellants) so having devised and intended to devise said scheme and artifice to defraud, for the purpose of executing said scheme and artifice to defraud, on, to wit, April 19, 1927, did place and cause to be placed in the post office at the city of Scranton, in the State of Pennsylvania, to be sent and delivered by the post office establishment of the United States of America, to the addressee thereof, three certain accounts inclosed in a certain envelope addressed to Merchants' Transfer and Storage Company, 920 E Street N. W., Washington, D. C. * * *"

A jury found appellants guilty on each count. Thereupon they moved in arrest of judgment, and from the decision of the lower court overruling their motion this appeal is taken. The basis of the motion is that the indictment on its face shows that the trial court (District of Columbia court) had no jurisdiction because the indictment failed to show the commission of any crime within the jurisdiction of that court. Stated otherwise, the claim was and is that the indictment charged the commission of an offense in Pennsylvania and not in the District of Columbia. A determination of this question involves an examination of the act of Congress under which the charge is laid. The material part of section 215 of the Criminal Code is as follows: "Whoever, having devised or intending to devise any scheme or artifice to defraud, * * * shall, for the purpose of executing such scheme or artifice * * * place, or cause to be placed, any letter * * * in any post office, * * * to be sent or delivered * * *, or shall take or receive any such therefrom * * *, or shall knowingly cause to be delivered by mail according to the direction thereon * * * any such letter * * * shall be fined, * * * or imprisoned. * * *"

The indictment here charges, as we have seen, a scheme to defraud, and also that for the purpose of executing it defendants (appellants) placed a letter in the post office in the city of Scranton, to be sent and delivered by the post office establishment to the addressee thereof in Washington, but it wholly failed to charge the delivery of the letter at the point of destination. It will thus be seen that the indictment is drawn in accordance with the language of the first provision of the statute making it an offense, under the circumstances alleged, to place a letter in a post office to be sent or delivered to the addressee thereof, and the question is whether such a charge, alleging only the act of mailing or depositing the letter in Pennsylvania, is triable in the District of Columbia.

The original statute (215 Criminal Code) did not contain the clause now in the statute making it also an offense for the deviser of the scheme to cause a letter "to be delivered by mail according to the direction thereon," and the Supreme Court, speaking of the statute as it formerly was, has declared the place of the deposit to be the place of the commission of the offense. Salinger v. Loisel, 265 U. S. 224, 234, 44 S. Ct. 519, 522, 68 L. Ed. 989. And at the same time, speaking of the effect and purpose of the introduction of the new clause into the statute, said: "That clause plainly provides for the punishment of the deviser of the scheme or artifice where he causes a letter in furtherance of it to be delivered by the mail according to the direction of the letter. This is done by way of enlarging the original definition of the offense, the clause dealing with the placing of such a letter in a mail depository being retained. Evidently Congress intended to make the statute more effective and to that end to change it so that where the letter is delivered according to the direction, such wrongful use of the mail may be dealt with in the district of the delivery as well as in that of the deposit."

That is to say, as we assume, that under the present statute the government may elect whether to bring the indictment in the district in which the letter is mailed or the district in which it is received, but obviously in either case the proper averments are essential.

As the indictment in the present case charges the deposit of the letter in Scranton, and does not charge the delivery of the letter in the District of Columbia, it seems to us clear that appellants were not triable under it in the latter place. The placing of the letter in the post office in Scranton under the circumstances related in the indictment was, of course, sufficient to charge an offense committed there and triable there on a similar indictment found there, but the mailing alone without also charging delivery in Washington is not, we think, sufficient to charge an offense committed in the District of Columbia and triable there, for it is only by virtue of the amendment of the statute and upon the allegation that the letter mailed in the one place was duly delivered in the other that an offense may properly be charged and tried in the latter; and, if this were all, we should have to reverse, but we are confronted with another question which we feel we must notice of our own motion, namely, whether the defective allegation as to venue appearing on the face of the indictment is jurisdictional, and therefore may be taken advantage of by motion in arrest of judgment.

In this case the defendants were arraigned and pleaded not guilty, and went to trial and were convicted. Was their failure seasonably to object to the jurisdiction of the trial court a waiver of the right secured them by article 3, section 2, of the Constitution, to have a trial in the state and district in which the offense is alleged to have occurred?

In Kansas (Ex parte Mote, 98 Kan. 804, 160 P. 223) it was held that the constitutional guaranty insuring a person charged with crime a speedy trial by an impartial jury of the county in which the offense is alleged to have been committed is a personal privilege which the accused may waive, and that it is too late after plea to challenge the jurisdiction of the court. So in South Carolina, State v. Browning, 70 S. C. 466, 50 S. E. 185, it was held that, notwithstanding the constitutional provision guaranteeing to every person charged with crime trial in the county in which the crime is alleged to have occurred, such right is waived when the defendant contests the case upon the merits. And so also in Nebraska (State v. Crinklaw, 40 Neb. 759, 59 N. W. 370) it was held that the constitutional right to trial by jury in the county in which the crime was committed is a personal privilege of the accused which would be held waived by his application for a change of venue. Cases from other states to the same effect will be found cited in the above-mentioned cases. Some of...