Hall v. United States

• Decision Date: 06 December 1921
• Docket Number: 5709.
• Citation: 277 F. 19
• Parties: HALL v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

277 F. 19

HALL v. UNITED STATES.

No. 5709.

United States Court of Appeals, Eighth Circuit.

December 6, 1921

[Copyrighted Material Omitted]

M. C Spicer, of Socorro, N.M., for plaintiff in error.

George R. Craig, U.S. Atty., of Albuquerque, N.M., and Henry G Coors, Jr., Sp. Asst. Atty. Gen., for the United States.

Before CARLAND, Circuit Judge, and YOUMANS and JOHNSON, District judges.

CARLAND Circuit Judge.

Plaintiff in error, hereafter defendant, was convicted and sentenced upon each of three counts of an indictment charging violations of section 1, Act Feb. 13, 1913, 37 Stat. 670 (Comp. St. Sec. 8603). The counts of the indictment were in the same language except as to the consignee and the property alleged to have been taken. The first and second counts named the Hall Hotel, Magdalena, N.M., as consignee. The third count named Harry S. Hall, Magdalena, N.M., as consignee. The first and second counts described the property taken as one barrel containing whisky. The third count described the property taken as one trunk containing whisky. The first count was in the following language:

'On May 29, 1919, at, to wit, the county of Socorro, state and district of New Mexico, one Harry S. Hall and one E. J. Walters, whose Christian name is to the grand jurors unknown, did unlawfully and feloniously take and carry away from a certain railroad car, to wit, Atchison, Topeka & Santa Fe combination baggage and express car No. 3205, certain goods, to wit, one barrel containing whisky, said goods then and there constituting an interstate shipment of express, to wit, a shipment of express from Kansas City, in the state of Missouri, to the Hall Hotel, Magdalena, N.M., with intent then and there on the part of them, the said Harry S. Hall and E. J. Walters, to convert said goods to their own use.'

Counsel for defendant attacked the indictment in the court below by motion in arrest of judgment. It was by said motion insisted that the indictment failed to state facts sufficient to constitute a public offense under the laws of the United States in this: (a) The manner of the taking and carrying away was not shown; (b) the defendant was not apprised by the indictment of the nature and cause of the accusation against him; (c) it did not appear from the indictment that the defendant did not have the right in law to take and carry away the property mentioned and to convert the same to his own use; (d) that it appeared said property was shipped to himself and intended for himself for his own use; (e) the indictment did not charge fraud or deception in the procurement of the property or in taking and carrying the same away. Section 1 denounces several offenses. One of them is described as follows:

That 'whoever shall * * * unlawfully take, carry away, * * * from any railroad car, * * * with intent to convert to his own use any goods or chattels * * * which constitute an interstate * * * shipment of * * * express * * * shall in each case be fined not more than $5,000 or imprisoned not more than ten years, or both.'

We are of the opinion that the statute fully defines the offense charged and that it was sufficient for the pleader to describe the offense in the language of the statute. Doe v. U.S., 253 F. 903, 166 C.C.A. 3; Potter v. U.S., 155 U.S. 438, 15 Sup.Ct. 144, 39 L.Ed. 214; U.S. v. Gooding, 12 Wheat. 460, 6 L.Ed. 693; U.S. v. Britton, 107 U.S. 655, 2 Sup.Ct. 512, 27 L.Ed. 520; Burton v. U.S., 202 U.S. 344, 26 Sup.Ct. 688, 50 L.Ed. 1057, 6 Ann.Cas. 362; Bloch v. U.S. (C.C.A.) 261 F. 321; Dunbar v. U.S., 156 U.S. 185, 192, 15 Sup.Ct. 325, 39 L.Ed. 390; Horn v. U.S., 182 F. 721, 105 C.C.A. 163; Ledbetter v. U.S., 170 U.S. 606, 18 Sup.Ct. 774, 42 L.Ed. 1162; Smith v. U.S., 157 F. 721, 85 C.C.A. 353; Rosen v. U.S., 161 U.S. 29, 16 Sup.Ct. 434, 480, 40 L.Ed. 606; Montoya v. U.S. (C.C.A.) 262 F. 759; section 1025, R.S.U.S. ^[1] The motion in arrest would only reach defects of the indictment in matter of substance, and not of form. So far as the offense charged in the indictment is concerned, the statute does not require that the possession of the property taken shall be accomplished by fraud or deception. It does not appear from the face of the indictment that the property was shipped by defendant to himself for his own use, whatever might be the effect of such a situation. Neither does it appear that defendant had the right to take and carry away the property described in the indictment. The indictment fully apprised defendant of the nature and cause of the accusation against him. It was not necessary that the indictment show the manner of taking and carrying away of the property in question. The indictment is sufficient to support the verdict, and therefore is good on motion in arrest

It is next objected that the trial court erred in admitting in evidence Exhibit No. 1, offered by the United States. Exhibit No. 1 was the original waybill made by the American Railway Express Company covering the shipment described in the first count of the indictment. It is claimed that there was no foundation laid for its introduction and no evidence that the barrel shipped at Kansas City, Mo., was the same barrel claimed to have been taken from the car at Socorro, N.M. We are clearly of the opinion that the testimony of Mary Halpin waybill clerk of the American Railway Express Company at Kansas City, Mo., together with the testimony of C. C. Baldwin, express messenger for said company running between La Junta, Colo., and El Paso, Tex., Engel, agent for the company and the Atchison, Topeka & Santa Fe Railway at Socorro, N.M., Stakpole, helper at the same place, Anderson, night clerk of the Hall Hotel at Magdalena, N.M., Cronin, who testified as to the declarations and acts of defendant at Socorro on the night of May 29, 1919, and Sullivan, express agent at Magdalena, N.M., clearly rendered Exhibit 1 admissible as tending to show an interstate shipment of express. Similar objections were made to the admission of the United States Exhibits 2 and 3. These were the substitutes or over waybills covering the barrel and trunk mentioned in counts 2 and 3 of the indictment. The evidence shows that, where a waybill is not made out for express matter at the point of shipment, it is the custom for the messenger on the train or the agent at the point of destination to make it out. In the present case the waybills under consideration were not made out at Kansas City, Mo., but were made out from markings on the barrel and trunk by Baldwin, the express messenger, and were identified by him. Baldwin received the barrel and trunk from Shirley, the...