Madsen v. United States, 3490.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation165 F.2d 507
Docket NumberNo. 3490.,3490.
Decision Date05 January 1948

165 F.2d 507 (1947)


No. 3490.

Circuit Court of Appeals, Tenth Circuit.

December 17, 1947.

Rehearing Denied January 5, 1948.

165 F.2d 508

J. Paul Jorgensen, of Wichita, Kan. (H. C. Castor, of Wichita, Kan., on the brief), for appellant.

Lester Luther, Asst. U. S. Atty., of Topeka, Kan. (Randolph Carpenter, U. S. Atty., and James W. Wallace, Asst. U. S. Atty., both of Topeka, Kan., on the brief), for appellee.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

Appellant, Elmer Siles Madsen, together with Jack Aaron Burger, Gerald Theodore Fowler, William Eugene Duvall, Clinton Otis Ransford, and Frank Nelson Madsen, were charged by count 1 of an indictment under 18 U.S.C.A. § 881 with a conspiracy to commit offenses against the United States in violation of the National Motor Vehicle Theft Act,2 and in subsequent counts with the commission of substantive offenses. Count 1 of the indictment charged the conspiracy. It also

165 F.2d 509
charged the commission of thirty-three overt acts in effectuating the conspiracy. Counts 3, 5 and 8 of the substantive counts charge Madsen with receiving and concealing certain named motor vehicles moving in interstate commerce, knowing them to have been stolen. Counts 6, 9, 10 and 13 charge him with transporting certain named stolen vehicles from places in Kansas, to places in Oklahoma, and certain other named motor vehicles from places in Oklahoma, to places in Kansas, knowing them to have been stolen. He was found guilty by a jury on all counts. A motion in arrest of judgment was sustained as to counts 9 and 13, and judgment was entered on the remaining counts. This appeal followed

Appellant's brief sets out fourteen assignments of error upon which he relies for reversal. These assignments may, however, be summarized generally as follows:

1. The indictment is insufficient because it does not charge appellant with a wrongful intent or with knowledge of any of the essential acts necessary to commit an offense against the United States.

2. Erroneous instructions by the court.

3. The evidence was insufficient to support the verdict of guilty.

The Indictment3

The sufficiency of an indictment is no longer tested by the rigors of the old technical rules of criminal procedure. The test is whether the indictment contains the elements of the offense intended to be charged and sufficiently informs the defendant of what he must meet in the preparation of his defense, and whether it is sufficiently specific to obviate the danger of the defendant being prosecuted a second time for the same offense. The indictment must allege the essential elements of the offense but mere forms of averment may be disregarded.4 Tested by these rules, we find no difficulty in upholding the sufficiency of the indictment.

The indictment charged the defendants with having conspired, confederated and combined with others unknown to commit certain offenses against the United States in violation of certain statutes of the United States, naming them. Then, as set out in the foot note, it designates specifically the method by which the conspiracy was to be consummated, followed by a list of the overt acts charged to have been committed in effectuating the conspiracy. There could be no doubt or uncertainty in the minds of any of the defendants as to the nature of the crime charged to them. It is true, as urged, that the indictment does not contain the words "knowingly, wilfully, feloniously, intentionally or unlawfully" but neither do the applicable statutes contain such words. It is unnecessary for an indictment to contain such formal words where the allegations thereof necessarily or fairly import guilty

165 F.2d 510
knowledge.5 An indictment charging a conspiracy is sufficient if it follows the language of the statute and contains a sufficient statement of an overt act to effectuate the object of the conspiracy.6

It is also urged that the court erred in refusing to dismiss counts 3, 5, 6, 8 and 10 for the reason that such counts each charged two separate offenses and were, therefore, duplicitous. Count 6 charged defendants with having "transported and caused to be transported in interstate commerce a stolen motor vehicle." Transporting and causing to be transported constitute a single offense and a count which charges one with "transporting and causing to be transported" does not charge two separate offenses and is, therefore, not duplicitous. Count 10 charged the defendants with "having transported a stolen motor vehicle. * * *" There is no basis whatever for the assertion that this count charged more than one offense. Counts 3, 5 and 8 each charged appellant with having "received and concealed a stolen motor vehicle * * *." We have, in a number of cases, held that receiving and concealing a stolen motor vehicle having been transported in interstate commerce constituted a single and separate offense from that of transporting such motor vehicle in interstate commerce.7 The National Motor Vehicle Theft Act sets out two offenses — one of transporting or causing to be transported, and a second of receiving, concealing, storing, bartering, selling or disposing of such motor vehicle. The various elements constituting the second offense are set out in the disjunctive. They do not, however, each constitute a separate offense but separate acts by which a single offense may be committed. The crime of receiving or concealing a stolen motor vehicle, transported in violation of the Act, was properly charged in the conjunctive by the use of the conjunction "and." In fact, this is the only way in which the offense could have been charged without being subject to an attack for vagueness or indefiniteness.8


Complaint is made of the instructions of the court to the jury. It may be noted that no exceptions were taken to the instructions of the court at the time they were given to the Jury or prior to the time the jury retired to consider its verdict. Rule 30 of the New Rules of Criminal Procedure, 18 U.S.C.A. following section 687, provides that "No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." This rule does not, however, deprive a court of its inherent power on its own volition to inquire into the adequacy of a charge to a jury in a criminal case where the life or liberty of a defendant is involved.9

It is sufficient to say that we...

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  • US v. Prentiss, No. 98-2040
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 12, 2001
    ...the extent that this Court's prior decisions, including Brown and Smith, hold otherwise, we overrule them. A. In Madsen v. United States, 165 F.2d 507 (10th Cir. 1947), we established that under the new form of pleading, an "indictment must allege the essential elements of the offense but m......
  • United States v. Tyler, 71-2143.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 4, 1972
    ...F.2d 535, 536 (6 Cir. 1957), aff\'d by an equally divided Court, 359 U.S. 118 , 79 S.Ct. 721, 3 L.Ed.2d 673 (1959); Madsen v. United States, 165 F.2d 507, 510 (10 Cir. 1947). We would see no reason for not following the other Circuits on this issue even if appellants had been convicted of s......
  • Koolish v. United States, 17462.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 25, 1965
    ...8 Cir., 160 F.2d 858, 867, cert. den. sub nom. Peters v. United States, 334 U.S. 860, 68 S.Ct. 1525, 92 L.Ed. 1780; Madsen v. United States, 10 Cir., 165 F.2d 507, 511. `Conspirators ordinarily do not announce that they have joined their efforts for the purpose of engaging in or furthering ......
  • Burks v. United States, 16947.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 1, 1961
    ...States v. Juzwiak, 2 Cir., 1958, 258 F.2d 844, certiorari denied 359 U.S. 939, 79 S.Ct. 652, 3 L.Ed.2d 639; Madsen v. United States, 10 Cir., 1947, 165 F.2d 507, 509-510. Nor is there any substance to the claim of appellant as to the alleged insufficiency of the The judgment of conviction o......
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