Holmes v. United States

• Decision Date: 09 April 1920
• Docket Number: 3449.
• Citation: 267 F. 529
• Parties: HOLMES et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

267 F. 529

HOLMES et al. v. UNITED STATES.

No. 3449.

United States Court of Appeals, Fifth Circuit.

April 9, 1920

Rehearing Denied June 6, 1920.

Leander A. Dale and F. G. Morris, both of El Paso, Tex., for plaintiffs in error.

W. H Fryer, Asst. U.S. Atty., and Edmund B. Elfers, Sp. Asst. U.S Atty., both of El Paso, Tex.

Before WALKER, Circuit Judge, and CALL and HUTCHESON, District Judges.

CALL District Judge.

The plaintiffs in error, with three other persons, were tried in the United States District Court for the Western District of Texas at the April term, 1919, of the El Paso Division, on two indictments consolidated. One of the indictments charged in the first count a conspiracy to steal certain arms and ammunition, the property of the United States; in the second count a conspiracy to export arms and ammunition without a license to export same. The other indictment charged the theft of certain described arms and ammunition. On the trial all the defendants were convicted. The date alleged in the conspiracy counts is the 17th day of December, 1918. The dates alleged in the theft counts are December 18th, 22d, and 23d, respectively, in the first, second, and third counts. Holmes and Miller pleaded not guilty, and this writ of error was sued out by them, the other three defendants not joining.

The government's testimony shows that Miller, Stalder Harrell, and Minahan were acting together in stealing certain arms and ammunition from supply tents of certain companies of United States troops, and the tendency of that testimony is to show that Holmes was engaged in running stuff into Mexico to be used by Villa. It also tends to prove that Miller was cognizant of Holmes' plans, and that the other defendants were also informed on this point, and that the arms and ammunitions were stolen for and delivered to Holmes after the thefts, under such conditions as would charge them with such knowledge. Two of the defendants, Stalder and Minahan, were enlisted men, wearing the uniforms of their respective branches of the service. Holmes was cognizant of the fact, at least as to one of them. The relations between Holmes and Miller negative the idea that Holmes was not fully informed of the transactions. The testimony of the conversations with Miller by the other defendants indicates his full knowledge and participation in Holmes' plans.

There are five points urged in brief for Holmes; separate briefs being filed by the two plaintiffs in error. A discussion of the points urged in the brief for Holmes will dispose also of the points urged in behalf of Miller.

The first contention is that defendants were indicted for a conspiracy to violate, and the violation of, section 47 of the Penal Code (Comp. St. Sec. 10214) in the first count of one indictment and the three counts of the other indictment, that the proof showed a violation, if any, of section 36 of the Penal Code (sec. 10200) and that section 36, being a special provision as to certain specified property, supersedes section 47, which is general, covering all property. This principle is recognized by the court, and, if the contention of plaintiffs in error can be applied in this case, error was committed by the trial court, and the jury should have been instructed as requested.

The trial court took the view that section 36 was inoperative as a criminal statute because of the indefiniteness of the punishment prescribed; in fact, that no punishment was in fact prescribed. Section 36 of the Penal Code reads as follows:

'Whoever shall steal, embezzle or knowingly apply to his own use or unlawfully sell, convey or dispose of any ordnance, arms, ammunition, clothing, subsistence, stores, money or other property of the United States furnished or to be used for the military or naval service, shall be punished as prescribed in the preceding section.'

Section 35 (Comp. St. Sec. 10199) defines a number of offenses for making false claims, etc., by officers civil or military against the United States, and prescribes the punishment therefor of a fine not exceeding $5,000, or imprisonment of not more than five years, or both. It then proceeds to define certain other crimes, prohibiting the purchase or receiving in pledge of certain obligations, etc., from soldiers and sailors, etc., and affixes as punishment to these last-mentioned offenses a fine of not more than $500 and imprisonment of not more than two years.

In order that the contention of plaintiffs in error should prevail, it is necessary that section 36 should be a valid existing law. It is undoubtedly the law that a valid criminal statute should be certain in its terms, and not leave uncertain the acts intended to be prohibited or the punishment...