McKinney v. United States, 11910.

• Decision Date: 15 February 1949
• Docket Number: No. 11910.,11910.
• Citation: 172 F.2d 781
• Parties: McKINNEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

172 F.2d 781 (1949)

McKINNEY v. UNITED STATES.

No. 11910.

United States Court of Appeals Ninth Circuit.

February 15, 1949.

Joseph Cecil McKinney, in pro. per., and Charlotte Hunter, of Reno, Nev., for appellant.

Miles N. Pike, U. S. Atty., and Bruce R. Thompson and Wm. J. Kane, Asst. U. S. Attys., all of Reno, Nev., for appellee.

Before DENMAN, Chief Judge, ORR, Circuit Judge, and BLACK, District Judge.

BLACK, District Judge.

The appellant was convicted after trial before a jury upon each of two counts of an information charging unlawful possession and concealment with intent to defraud of a certain falsely altered obligation of the United States, to-wit: split Federal Reserve notes, the first count referring to a split fifty dollar note and the second count to a split twenty dollar note, each count charging that the respective "note had been split by separating the face or front from the back or reverse side thereof."

From a judgment of conviction on both counts and identical sentences to run concurrently this appeal was taken.

Each count in the information charged a violation of 18 U.S.C.A. § 265. (§ 265 has since been revised, effective September 1, 1948, as § 472, Title 18 of New Criminal Code.)

The appellant in this appeal designated thirteen alleged errors under "Specification of Errors" in his opening brief but the argument confined itself to only three, as follows: "1. The Information was fatally defective in that it omitted a material allegation. 2. Conviction, based on Information, was improper. 3. The Verdict was not supported by the evidence."

The appellant in the trial court chose to represent himself and in the district court made no objections to the information or rulings of the court. On this appeal by appointment of the trial judge appellant has had an attorney to assist and counsel him.

The second error above-mentioned that the "Conviction, based on Information, was improper" is urged despite the fact that the appellant in open court in compliance with Rule 7(b) Federal Rules of Criminal Procedure, 18 U.S.C.A., signed a written waiver of indictment and consent to the proceeding being by information after he had in open court been advised of the nature of the charge and of his rights. Such specification of error is therefore without merit and requires no further consideration.

Under the first specification of error argued appellant contends that the information was fatally defective in that there was no averment in either count that the appellant knew of the altered condition of the notes in question. He depends upon Hill v. U. S., 7 Cir., 275 F. 187 and United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135.

The government's position is that each of said cases is definitely distinguishable on the facts from this one. It contends that both counts before us charge offenses in the language of the section violated, and that each count is in full compliance with the provisions of Rule 7(c) Federal Rules of Criminal Procedure. As to United States v. Carll, supra, the government urges that such case was decided in 1882 and that the offense under the statute then under consideration was similar to the common law offense of uttering a forged or counterfeit bill while the offenses of possession in the instant case are purely statutory. In such connection the government cites United States v. Balint et al., 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604; United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619; United States v. Combs, D.C., 73 F.Supp. 813, decided in 1947.

In the instant case this instruction was given:

"The jury must find beyond a reasonable doubt that the defendant kept such described altered security in his possession with knowledge of its character and with intent to defraud."

Moreover, the appellant himself in his testimony not only conceded but actually asserted that he had such knowledge.

A reading of 18 U.S.C.A. § 265 discloses several alternative methods of violating such statute. One is with intent to defraud to keep in possession any such altered obligation. While each count of the information charged the appellant with such possession with intent to defraud each also in addition charged intent to pass. A conviction based upon an indictment charging possession with "intent to defraud" and without any charge of "intent to pass" was sustained in Smith v. U. S., 5 Cir., 74 F.2d 941. The additional language in the information before us of "and with intent to pass" is clearly surplusage. The court's instructions eliminated such surplusage so that the jury's verdict definitely determined that the appellant had possession of the split notes with intent to defraud.

The government quite persuasively suggests that "intent to defraud" is a comprehensive term and included charge of knowledge on the part of appellant of the character of the split notes. It is not only difficult but seemingly impossible to realistically conceive a situation where knowledge of alteration would not be part of a fraudulent intent with respect to possession of separated fronts and backs of fifty and twenty dollar notes. The Supreme Court in United States v. Carll, supra, in 1882 in substance merely found under the statute then before it that the words "with intent to defraud" were...