Loper v. United States
| Decision Date | 29 January 1947 |
| Citation | 160 F.2d 293 |
| Parties | LOPER v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Willard Hanson, of Salt Lake City, Utah (Milton A. Melville, of Fillmore, Utah, and Ray S. McCarty, of Salt Lake City, Utah, on the brief), for appellant.
Scott M. Matheson, of Salt Lake City, Utah (Dan B. Shields, U.S.Atty., and Oliver K. Clay, Asst. U. S. Atty., both of Salt Lake City, Utah, on the brief), for the United States.
Before PHILLIPS and MURRAH, Circuit Judges, and CHANDLER, District Judge.
Arthur Fred Loper was convicted of violating the National Cattle Theft Act, 18 U.S.C.A. § 419b, and has appealed to this court.
The record discloses that defendant filed a motion to dismiss the indictment on the ground that it did not state facts sufficient to constitute an offence against the United States, and on the ground that the property stolen was not sufficiently described. He also moved for acquittal at the conclusion of the evidence and filed a motion for a new trial, the grounds being substantially the same as those urged on appeal, namely, that there was a fatal variance between the allegations of the indictment and the proof adduced, and that the evidence was insufficient to justify the verdict.
The indictment charges, in part, "That heretofore, to-wit, on or about the 14th day of November, 1945, at Hamlin Valley, in the District of Utah, certain goods, wares and merchandise, to-wit, 4 longeared calves were stolen from the owners thereof, Young Brothers of Burbank, Utah, Henry Hammond of Ursine, Nevada, and David Francis of Ursine, Nevada, by one Arthur Fred Loper, * * *."
Appellant contends that the indictment charges a joint ownership of the calves by the persons named. The proof showed individual ownership of specific calves by these persons. If joint ownership is charged there is a variance. However, it is unnecessary to decide this question since we deem the variance, if any, to be immaterial. An examination of the entire record discloses that no substantial prejudice to the defendant resulted therefrom. It did not mislead him at the trial and he is protected against another prosecution for the same offense.
A variance between indictment and proof is material only when it is shown that substantial prejudice to the accused resulted therefrom. 28 U.S.C.A. § 391; 18 U.S. C.A. § 556; Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314; United States v. Cohen, 2 Cir., 145 F.2d 82.
Defenda...
To continue reading
Request your trial
-
United States v. Daigle, Crim. No. 1122-56.
...the charge against him, and protection against being again placed in jeopardy. See Rule of Criminal Procedure 52(a) and Loper v. United States, 10 Cir., 160 F.2d 293; Phelps v. United States, 9 Cir., 160 F.2d 626, decided thereunder; and Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 7......
-
State v. Shonka, 8205
...(1946).3 People v. Miller, 4 Utah 410, 11 P. 514; State v. Allen, 56 Utah 37, 189 P. 84.4 12 Okl.Cr. 269, 154 P. 1007, 1008.5 Loper v. U. S., 10 Cir., 160 F.2d 293. See 2 Burdick, Law of Crime, p. 306 (1946).6 State v. Hitesman, 58 Utah 262, 198 P. 769 (Grand Larceny).7 See Jones v. Califor......
-
Young v. Territory of Hawaii, 11144.
... ... , in all cases, civil or criminal, wherein the Constitution or a statute or treaty of the United States or any authority exercised thereunder is involved; in all other civil cases wherein the ... ...
-
United States v. Cohen, 9267.
...States, 1944, 78 U.S.App.D.C. 400, 142 F.2d 697, 698, certiorari denied 322 U.S. 760, 64 S.Ct. 1274, 88 L.Ed. 1588; Loper v. United States, 10 Cir., 1947, 160 F.2d 293, 294; Carothers v. United States, 5 Cir., 1947, 161 F.2d 718, For the reasons stated, the judgment of conviction will be re......