Jarl v. United States

• Decision Date: 05 May 1927
• Docket Number: No. 7385,7386.,7385
• Citation: 19 F.2d 891
• Parties: JARL v. UNITED STATES. MONROE v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

19 F.2d 891 (1927)

JARL v. UNITED STATES.^*

MONROE v. SAME.

Nos. 7385, 7386.

Circuit Court of Appeals, Eighth Circuit.

May 5, 1927.

Eugene D. O'Sullivan, of Omaha, Neb. (William N. Jamieson, Charles J. Southard, and James H. Hanley, all of Omaha, Neb., on the brief), for plaintiffs in error.

George A. Keyser, Asst. U. S. Atty., of Omaha, Neb. (James C. Kinsler, U. S. Atty., and Ambrose C. Epperson and Andrew C. Scott, Asst. U. S. Attys., all of Omaha, Neb., and William J. Froelich, Asst. U. S. Atty., of O'Neill, Neb., on the brief), for the United States.

Before LEWIS and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

LEWIS, Circuit Judge.

The plaintiffs in error were tried and convicted of offenses charged against them in three counts of an indictment. They come here on separate writs and each assigns as error the overruling of their demurrer to each count. The charges in counts 1 and 2 are in these words:

First Count: "That on or about the fourteenth day of August, in the year nineteen hundred and twenty-four, in the city of Omaha, county of Douglas, and in the Omaha division of the district of Nebraska, and within the jurisdiction of this court, the defendants, Charles Jarl and Frank H. Monroe, then and there being, did then and there unlawfully, knowingly and wilfully transport certain intoxicating liquor, namely, three five-gallon cans, more or less, of intoxicating liquor, all said intoxicating liquor containing more than one-half of one per cent. of alcohol by volume, and being fit for beverage purposes, without first obtaining a permit from the Commissioner of Internal Revenue of the United States of America so to do; contrary to the form of the statute of the United States of America in such case made and provided, and against the peace and dignity of said United States."

Second Count: "And the grand jurors aforesaid, on their oaths aforesaid, do further present that on or about the fourteenth day of August, in the year nineteen hundred and twenty-four, in the city of Omaha, county of Douglas, in the Omaha division of the district of Nebraska, and within the jurisdiction of this court, the defendants, Charles Jarl and Frank H. Monroe, then and there being, did then and there unlawfully, wilfully and knowingly sell certain intoxicating liquor, namely, three five-gallon cans more or less of intoxicating liquor, all said intoxicating liquor containing more than one-half of one per cent. of alcohol by volume, and being fit for beverage purposes, without first obtaining a permit from the Commissioner of Internal Revenue of the United States of America so to do; contrary to the form of the statute of said United States of America in such case made and provided, and against the peace and dignity of said United States."

It will be observed that neither count specifies the day and the prosecution would not have been restricted in that respect, if it had, nor the kind of intoxicating liquor, nor the amount, nor the particular places in the city of Omaha. The first count does not name the place from which nor the place to which the transportation was made, nor the purpose therefor, nor how it was made, whether by truck, wagon, street car, automobile, or otherwise, or any other identifying fact; and the second does not name the particular place, the purchaser, nor the price. There are no circumstances stated connected with either transaction which identify and distinguish them from a multitude of other like transactions that might be charged against these parties in the same general or specific terms. If this procedure is to be approved it must be applied to all criminal causes alike. When a trial comes on, if there be procurable evidence of more than one transaction within the terms of the general charge, the District Attorney may select one which the Grand Jury did not intend to find. The reasons for some particularity in charging all criminal offenses are well understood, among them: To identify the charge, so that defendant be not put upon trial, without authority, for an offense other than the one covered by the indictment; to enable the defendant to plead thereto, specially or generally, and if his special plea should be overruled, to intelligently prepare his defense; and to protect him on the record in his constitutional right from being twice put in jeopardy for the same offense. 1 Wharton on Crim. Law (7th and Rev. Ed.) §§ 299-304. And for the purpose of securing these rights the Sixth Amendment requires that defendant be informed of the nature and cause of the accusation. Informed by whom, when and how? By the grand jury through its indictment, mentioned in the preceding amendment, returned into court as a result of its secret inquest. The amendments recognized and gave protection to established principles. An indictment for larceny was not good unless it named the property stolen with some definiteness and its owner, for arson some description of the building to which fire was set, for forgery the instrument forged or to which the forged signature was attached, for obtaining property by false pretenses the owner and the false pretenses resorted to, for obstructing a highway a description of it and where and how it was obstructed, for murder the circumstances connected with the homicidal act, etc. Thus a defendant was informed of the nature and cause of the accusation, he could plead former jeopardy if he had been or should thereafter be indicted for the same offense, and if he went to trial he was enabled from the charge itself to make his defense. No circumstances are pleaded in connection with either charge in these two counts that protected the defendants in any of these rights. These requirements of a good indictment have been repeatedly stated by the Supreme Court, by this court and other courts. In Armour Packing Co. v. United States, 209 U. S. 56, 83, 28 S. Ct. 428, 436 (52 L. Ed. 681), it is said:

"This court has frequently had occasion to hold that the accused is entitled to know the nature and cause of the accusation against him, and that a charge must be sufficiently definite to enable him to make his defense and avail himself of the record of conviction or acquittal for his protection against further prosecutions."

In Harper v. United States, 170 F. 385, this court quoted with approval from an opinion of the Ninth Circuit as to the required definiteness of an indictment for the purpose of pleading former jeopardy thus:

"* * * And, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction."

Again, in Horn v. United States, 182 F. 721, 728, we said:

"The true test therefore is, not whether the indictment might possibly have been made more certain, but whether it contains every element of the offense intended to be charged and sufficiently apprises the accused of what they must be prepared to meet, and, in case any other proceedings are taken against them for a similar offense, whether the record shows with accuracy to what extent they may plead a former acquittal or conviction."

This statement of the principle was taken from Cochran & Sayre v. United States, 157 U. S. 286, 290, 15 S. Ct. 628, 39 L. Ed. 704. Mr. Justice Brown wrote the opinion in that case, and thereafter, speaking for the court in Ledbetter v. United States, 170 U. S. 606, 609, 610, 18 S. Ct. 774, 775 (42 L. Ed. 1162), he said:

"We have no disposition to qualify what has already been frequently decided by this court, that where the crime is a statutory one it must be charged with precision and certainty, and every ingredient of which it is composed must be clearly and accurately set forth, and that even in the cases of misdemeanors the indictment must be free from all ambiguity, and leave no doubt in the minds of the accused and the court of the exact offense intended to be charged."

In support of this proposition he cited Evans v. United States, 153 U. S. 584, 14 S. Ct. 934, 38 L. Ed. 830, in which he, again speaking for the court, said:

"Even in the cases of misdemeanors, the indictment must be free from all ambiguity, and leave no doubt in the minds of the accused and the court of the exact offense intended to be charged, not only that the former may know what he is called upon to meet, but that, upon a plea of former acquittal or conviction, the record may show with accuracy the exact offense to which the plea relates."

That protection secured by the Fifth Amendment against being twice put in jeopardy for the same offense, applied to misdemeanors as well as felonies, was adjudged in Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872.

Let us return to the Ledbetter Case: It must be clear from the language quoted, supra, and beyond controversy, that an indictment for a statutory offense which merely follows the language of the statute which defines the crime, is not good, even though it contains every ingredient of the statutory definition, unless it charges the offense with precision and certainty and leaves no room for doubt in the minds of the accused and the court of the exact offense intended to be charged; and unless also, on the authorities cited in that case and the others from which we have quoted, the record shows with accuracy the exact offense presently charged, as a protection against double jeopardy — because of a former, or perchance a subsequent charge of the same offense. It is very obvious that the statute which was closely followed by the indictment in the Ledbetter Case, was enough to comply with these requirements, but such statutes are exceptional, as a hasty examination of the sections of the Criminal Code will, we think, demonstrate. It is not necessary that we specify circumstances directly connected with or surrounding the commission of these two offenses that would differentiate them from other like offenses; that was a duty imposed on the grand jury, it...