Hattaway v. United States, No. 19228.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: BROWN and WISDOM, Circuit , and DeVANE
• Citation: 304 F.2d 5
• Parties: Roy Orlen HATTAWAY, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 19228.
• Decision Date: 06 June 1962

304 F.2d 5 (1962)

Roy Orlen HATTAWAY, Appellant,
v.
UNITED STATES of America, Appellee.

No. 19228.

United States Court of Appeals Fifth Circuit.

June 6, 1962.

Isaac F. Hawkins, Jr., Shreveport, La., for appellant.

T. Fitzhugh Wilson, U. S. Atty., Shreveport, La., Marshall Tamor Golding,

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Atty., Dept. of Justice, Washington, D. C., Herbert J. Miller, Jr., Asst. Atty. Gen., Criminal Division, Dept. of Justice, for appellee

Before BROWN and WISDOM, Circuit Judges, and DeVANE, District Judge.

JOHN R. BROWN, Circuit Judge.

The question here is whether indictment really means indictment. We hold that it does, and the indictment, having been returned for the first time after the running of the controlling statute of limitations, prosecution of this case of kidnapping was barred and the conviction cannot stand. We accordingly reverse.

The case turns on § 3288 of the Criminal Code which extends the limitations period:

"Whenever an indictment is dismissed for any error, defect or irregularity with respect to the grand jury, or is found otherwise defective or insufficient for any cause, after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned not later than the end of the next succeeding regular term of such court, following the term at which such indictment was found defective or insufficient, during which a grand jury shall be in session which new indictment shall not be barred by any statute of limitations." 18 U.S.C.A. § 3288.

As is so frequent, the difficult and serious problem arises out of facts which are strikingly simple, neither complex nor conflicting. On December 13, 1953, appellant and a hitchhiking companion, after being picked up in East Texas by the Good Samaritan, forced their host at gun point to surrender control of his car and to accompany them to Louisiana. There the victim was released unharmed when the abductors were apprehended by Louisiana State Police. As a noncapital offense under the kidnapping statute (18 U.S.C.A. § 1201), the statute of limitations was five years,¹ and unless tolled, the case would be barred in December 1958. Within less than a month from the crime, appellant on January 8, 1954, appeared in court, waived indictment and a Bill of Information was filed against him charging violation of the kidnapping statute.² Of critical importance — though not then realized — the allegations in the information were in the words of the statute, but silent as to whether the victim was released harmed or unharmed. On his plea of guilty, a 25-year sentence was imposed. Seven years later, March 1961, by a 28 U.S.C.A. § 2255 proceeding, he attacked this conviction. The ground was that under the allegations of the information, he was actually charged with a capital offense which, under F.R. Crim.P. 7(a), 18 U.S.C.A., can be brought only by indictment³ so his waiver under 7(b) was not permitted.⁴

The Government did not resist this, nor could it. For by now Smith v. United

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States, 1959, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041,⁵ had been decided on June 8, 1959. There the Court held that even though the information was silent on whether the victim was released harmed or unharmed proof showing that the victim had been harmed would have been permissible. On it, the Court or jury could assess capital punishment.⁶ Indictment was therefore the only way to prosecute the crime. The trial Court lacked jurisdiction, and the sentence was a nullity since "* * * the waivers made by petitioner were not binding and did not confer power on the convicting court to hear the case." 360 U.S. at 10, 79 S.Ct. at 997

Consequently, on March 27, 1961, the judgment of conviction was vacated. But on the same day — 8 years after the crime — an indictment was returned charging exactly the same offense. Upon a trial before the Court without a jury, the appellant was adjudged guilty, and a sentence of 7½ years imposed. It is from that sentence that this appeal asserts the basic contention that prosecution was barred by the 5-year statute of limitations, § 3282. See note 1, supra.

Several things are perfectly plain. There has been but one Grand Jury indictment — one returned 8 years after the crime. Since there has been no prior Grand Jury indictment, no such indictment has been "* * * dismissed for any error, defect or irregularity with respect to the grand jury * * *," nor has it been "* * * found otherwise defective or insufficient for any cause * * *." § 3288. The Government does not attempt to explain this away. It takes the frank, positive position that when Congress said "indictment," it was not using this word in the unique technical sense which it has in a formalized systematic body of criminal law. Rather, the Government urges, Congress was using it in the generic, and much looser sense, to refer to any formal accusation, charge or statement of grievance or wrongdoing. This, then, would encompass any mode recognized by law, whether existing at the time of the enactment of the statute, or coming into being later on, by which one alleged to have committed an offense is formally accused.

This is the central core of the Government's contention. In a thorough-going brief that does credit to its authors and the important seriousness of the issue, it expounds a number of the tangible convenient formulas on statutory construction, none of which are ever really very helpful until a given result is reached after which the given principle matches the given result with perfection.

In that process, it is hardly surprising that the solution is not found in the dictionary. Lexicographers are not, therefore, the Judges. The Government frankly acknowledges that the word has two distinctive meanings, both relating to law, one purely technical as the descriptive meanings of a specific legal mechanism, the other, the generic one, having reference to any mode of accusation. Moreover, the Government believes it must fairly be acknowledged that the authorities are in dispute as to which is the primary meaning.⁷

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Likewise, it is not surprising that instances can be found in which Judges writing opinions have used this term in its generic sense, probably loosely on some occasions,⁸ while in others the sense of the statute or problem under review made such a connotation the obviously correct one.⁹

Great stress is then laid on accepted canons of construction, the foremost being that the "* * * object in construing penal as well as other statutes,

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is to ascertain the legislative intent. That constitutes the law." United States v. Hartwell, 1868, 6 Wall. 385, 395-396, 73 U.S. 385, 18 L.Ed. 830. Likewise, the clearly revealed policy should be effectuated even though it may be doubtful whether new developments may be within the terminology actually employed in the statute. This emphasis is epitomized by Mr. Justice Holmes' declaration on circuit that "The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed." Johnson v. United States, 1 Cir., 1908, 163 F. 30, 32, which was echoed and expanded in United States v. Hutcheson, 1941, 312 U.S. 219, 235, 61 S.Ct. 463, 85 L.Ed. 788. Another factor, perhaps negative in nature, is the necessity of construing a statute to avoid absurdities. "All laws are to be given a sensible construction; and a literal application of a statute, which would lead to absurd consequences, should be avoided whenever a reasonable application can be given to it, consistent with the legislative purpose." United States v. Katz, 1926, 271 U.S. 354, 357, 46 S.Ct. 513, 70 L.Ed. 986. And that rules out literalism as an absolute and an end in and of itself¹⁰ as we have many times held. See Fulford v. Forman, 5 Cir., 1957, 245 F.2d 145, 149; Keith v. United States, 5 Cir., 1957, 250 F.2d 355, 357; Florida Citrus Exchange v. Folsom, 5 Cir., 1957, 246 F.2d 850, 857

Finally, in terms of familiar canons, it is urged that the rule of strict construction applicable frequently to criminal statutes is not proper here. Rather, the Government insists, such a rule is restricted to those criminal statutes which are penal in the sense of defining standards of conduct and imposing sanctions for violations. See United States v. Wiltberger, 1820, 5 Wheat. 76, 95, 18 U.S. 76, 5 L.Ed. 37; M. Kraus & Bros. v. United States, 1946, 327 U.S. 614, 621-622, 66 S.Ct. 705, 90 L.Ed. 894; Bell v. United States, 1955, 349 U.S. 81, 83-84, 75 S.Ct. 620, 99 L.Ed. 905. More than that, the rule is not an absolute.¹¹ "The rule of strict construction does not require that the narrowest technical meaning be given to the words employed in a criminal statute in disregard of their context and in frustration of the obvious legislative intent. * * * The rule of strict construction is not violated by permitting the words of the statute to have their full meaning, or the more extended of two meanings, as the wider popular instead of the more narrow technical one; but the words should be taken in such a sense, bent neither one way nor the other, as will best manifest the legislative intent." United States v. Corbett, 1909, 215 U.S. 233, 242, 30 S.Ct. 81, 54 L.Ed. 173.

A good way to end — just as it was a good way to begin — this brief discussion of formalized canons is to repeat Mr. Justice Storey's words from United States v. Winn, 3 Sumn. 209, 211, Fed.Cas.No.16,740, and later set forth in Johnson v. Southern Pacific Co., 1904, 196 U.S. 1, 18, 25 S.Ct. 158, 49 L.Ed. 363. "In short, it appears to me, that the proper course in all these cases, is to search out and follow the true intent

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of the legislature, and to adopt that sense of the words which harmonizes best with the context, and promotes in the fullest manner, the apparent policy and objects of the legislature."

The problem thus begins and ends with the statute under...