Keys v. United States, 12069.

• Decision Date: 26 March 1942
• Docket Number: No. 12069.,12069.
• Parties: KEYS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

126 F.2d 181 (1942)

KEYS v. UNITED STATES.

No. 12069.

Circuit Court of Appeals, Eighth Circuit.

March 12, 1942.

Rehearing Denied March 26, 1942.

C. W. Prince, of Kansas City, Mo. (William R. Ross, of Kansas City, Mo., on the brief), for appellant.

Charles F. Lamkin, Jr., Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for appellee.

Before STONE, THOMAS, and JOHNSEN, Circuit Judges.

THOMAS, Circuit Judge.

The appellant was convicted under an indictment which charges a violation of § 408d(c), U.S.C., 18 U.S.C.A., § 408d(c), which provides:

"Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, shall transmit in interstate commerce by any means whatsoever any communication containing any threat to injure the property or reputation of the addressee or of another * * * shall be fined * * *."

The indictment recites that: "* * * on or about the 4th day of June 1940, one George H. Keys did then and there wilfully and feloniously transmit in interstate commerce by the means of the Post Office establishment of the United States a certain communication addressed to Aluminum Association, 903 American Bank Building, Pittsburgh, Pennsylvania, an association then and there engaged in promoting the manufacture, distribution and sale to the public of aluminum for various purposes, and in particular for cooking utensils, with the willful and felonious intent then and there and thereby to extort from the addressee, the said Aluminum Association, money and others things of value, the said communication then and there containing a threat to injure the reputation of the said addressee unless money and other things of value should be paid over to the said George H. Keys, the said injury to the reputation of the addressee contemplated as aforesaid being embraced by a threat in said communication contained that the said George H. Keys would distribute a pamphlet to the public to the effect that the use of aluminum cooking utensils is harmful and is a causative factor in diabetes and other diseases."

The appellant's contentions in this court are (1) that the evidence is insufficient to establish intent and threat and (2) that the indictment is insufficient.

The first contention is without merit. The question presented was raised in the lower court by objection to the admission of evidence and by motion for a directed verdict. The government introduced in evidence a "communication" consisting of a letter addressed to Aluminum Association, Pittsburgh, Pennsylvania, and a pamphlet. The defendant testified in his own behalf and admitted that he sent both documents. These papers¹ contain sufficient statements to warrant the jury in finding both intent and a threat.

The second contention is more serious. The alleged defect in the indictment is that it does not embody a copy of the "communication" including the letter and pamphlet. It is pointed out that the indictment does not show the date of the letter nor state the name of the author, and that the charge that it contains a threat is a conclusion of the pleader.

The indictment was not assailed in the trial court by motion for a bill of particulars or otherwise; but where an indictment is challenged for the omission of an essential element of the crime the objection may be asserted in this court for the first time. Harris v. United States, 8 Cir., 104 F.2d 41, 43; Nicholson v. United States, 8 Cir., 79 F.2d 387; Dropps v. United States, 8 Cir., 34 F.2d 15.

The essentials of the crime defined in the statute are (1) an intent to extort money; (2) the transmission in interstate commerce of a communication (3) containing a threat to injure the property or reputation of the addressee or another.

The indictment attempts to charge these essentials by pleading that the defendant (1) "with the willful and felonious intent * * * thereby to extort from the addressee, the said Aluminum Association, money * * * (2) did transmit in interstate commerce by means of the Post Office establishment of the United States * * * a certain communication addressed to the Aluminum Association (3) containing a threat to injure the reputation of the said addressee unless money * * * should be paid over to" the defendant, — "the said injury to the reputation of the addressee contemplated as aforesaid being embraced by a threat in said communication contained that the said George H. Keys would distribute a pamphlet to the public to the effect that the use of aluminum cooking utensils is harmful and is a causative factor in diabetes and other diseases."

In Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 630, 39 L.Ed. 704, the Supreme Court said that the "true test" of an indictment is, "not whether it might possibly have been made more certain, but 1 whether it contains every element of the offence intended to be charged, and 2 sufficiently apprises the defendant of what he must be prepared to meet, and, 3 in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction."

In Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861, the Court said: "The rigor of old common-law rules of criminal pleading has yielded, in modern practice, to the general principle that formal defects, not prejudicial, will be disregarded." And § 556, Title 18 U.S.C.A., § 1025, Revised Statutes, provides:

"No indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant * *."

In Hagner v. United States, supra, the Court said:

"This section was enacted to the end that, while the accused must be afforded full protection, the guilty shall not escape through mere imperfections of pleading.

* * * * * *

"It, of course, is not the intent of section 1025 to dispense with the rule which requires that the essential elements of an offense must be alleged; but it authorizes the courts to disregard merely loose or inartificial forms of averment. Upon a proceeding after verdict at least, no prejudice being shown, it is enough that the necessary facts appear in any form, or by fair construction can be found within the terms of the indictment."

Under these rules most of appellant's criticism of the indictment fails for want of substance. All the elements of the offense are charged; and, in so far as the present trial is involved, no prejudice is shown. The appellant admitted the sending of the letter, prepared for trial, and offered evidence in an attempt to explain the contents of the letter in such a way as to demonstrate his innocence. The only problem is whether the failure to set out a copy of the letter and pamphlet in haec verba is a defect of substance or of form only. At common law an indictment for sending a threatening letter, or for forgery or libel, was required to be set out in haec verba. Bradlaugh v. The Queen, L.R. 32, B.D. 618; and the federal courts have in some instances followed or repeated the rule. United States v. Noelke, C.C.N.Y., 1 F. 426, 433; Wilson v. United States, 2 Cir., 275 F. 307, 312. In these cases it was held or stated obiter that a failure to set out a literal copy of the document is a defect of substance and not of form. The more modern view, we think, is to the contrary. In United States v. Goldsmith, 2 Cir., 68 F.2d 5, 7, certiorari denied 291 U.S. 681, 54 S.Ct. 559, 78 L.Ed. 1068, the defendant was charged with uttering...