Kane v. United States, 11903.
| Decision Date | 23 June 1941 |
| Docket Number | No. 11903.,11903. |
| Citation | 120 F.2d 990 |
| Parties | KANE v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Anthony P. Nugent, of Kansas City, Mo., for appellant.
Richard K. Phelps, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., and Charles L. King, Asst. U. S. Atty., both of Kansas City, Mo., on the brief), for appellee.
Before GARDNER and JOHNSEN, Circuit Judges, and COLLET, District Judge.
Defendant has appealed from his conviction by a jury, under Section 32 of the Criminal Code, 18 U.S.C.A. § 76, for impersonating an agent of the Department of Justice and obtaining written statements from witnesses on the false representation that he was conducting an investigation for that Department.
The only question presented is the sufficiency of the indictment. It is contended that the indictment is fatally defective because it does not charge (1) that defendant's acts were done "with intent to defraud", and (2) that, in impersonating a federal agent, defendant "did take upon himself to act as such officer."
The case is submitted here upon the primary record and briefs. The evidence and the trial court's instructions are not before us. The record shows that no attack was made upon the indictment in the trial court, and the question raised must therefore be considered in the light of this fact.
Section 32 of the Criminal Code, as amended, under which the indictment was drawn, provides: "Whoever, with intent to defraud either the United States or any person, shall falsely assume or pretend to be an officer or employee acting under the authority of the United States, or any department, or any officer of the Government thereof, or under the authority of any corporation owned or controlled by the United States, and shall take upon himself to act as such, or shall in such pretended character demand or obtain from any person or from the United States, or any department, or any officer of the Government thereof, or any corporation owned or controlled by the United States, any money, paper, document, or other valuable thing, shall be fined not more than $1,000 or imprisoned not more than three years, or both."
The indictment, in so far as it is here material, alleged that defendant "did knowingly, falsely, and feloniously represent and pretend that he was an officer or employee of and acting under the authority of the United States Government, to wit, an agent of the Department of Justice, and did knowingly, falsely and feloniously represent and pretend that as an agent of the Department of Justice aforesaid, he was duly authorized and empowered to act in the capacity of an agent of the Department of Justice for the purpose of obtaining information for the use of the United States Government; and that in such pretended character aforesaid the defendant did knowingly, falsely, and feloniously * * * pretend and represent to one Henry Woodson that he was a duly authorized employee and agent of the Department of Justice of the United States and that he was in Kansas City, Missouri, for the purpose of conducting an investigation and obtaining information to be forwarded to the said Attorney General's office at Washington, D. C., and that it would be necessary that he obtain a written signed statement from the said Henry Woodson to be incorporated in a report to be made by the said defendant to the Attorney General's office in Washington, D. C., and the said Henry Woodson, believing and relying upon the pretensions and representations of said defendant aforesaid, did give to the said defendant and the said defendant did obtain from Henry Woodson a certain paper, to wit, a written statement signed by the said Henry Woodson." The indictment also contained the formal allegation that such acts were "contrary to the form of the statute in such case made and provided".
To constitute a crime under Section 32, the acts proscribed necessarily must be done "with intent to defraud." United States v. Barnow, 239 U.S. 74, 36 S.Ct. 19, 60 L.Ed. 155; United States v. McNaugh, 2 Cir., 42 F.2d 835. The primary purpose of an indictment has always been held to be to give the accused sufficient information to enable him to prepare his defense; and, in the first instance, therefore, every essential element of the crime has generally been required to be charged, not merely inferentially, but with reasonable certainty and directness. United States v. Hess, 124 U. S. 483, 8 S.Ct. 571, 31 L.Ed. 516; Baas v. United States, 5 Cir., 25 F.2d 294. And so, it may be that an indictment under Section 32,...
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...to defraud, could not be guilty of false personation. 25 C.J. 578; 2 Brill's "Cyclopedia of Criminal Law," sec. 1277, p. 1941; Kane v. United States, 120 F.2d 990. (6) Plaintiff's mere presence at the commission of crime (if there was a crime committed) was insufficient to constitute "aidin......
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...the same is hereby affirmed. 1 Elder v. United States, 9 Cir., 142 F.2d 199; Muench v. United States, 8 Cir., 96 F.2d 332; Kane v. United States, 8 Cir., 120 F.2d 990. 2 Emphasis supplied. 3 42 C.J.S., Indictments and Information, § 133, p. 1024; Creswell v. State, 161 Tenn. 320, 30 S.W.2d ......
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Boykin v. United States, 7954.
...189, 76 L.Ed. 356, 80 A.L.R. 161; Dunbar v. United States, 1895, 156 U.S. 185, 191, 192, 15 S.Ct. 325, 39 L.Ed. 390; Kane v. United States, 8 Cir., 1941, 120 F.2d 990, 992; Crapo v. United States, 10 Cir., 1939, 100 F.2d 996, 3 No case directly in point has been found. For somewhat analogou......
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