Morris v. United States

• Decision Date: 18 January 1916
• Docket Number: 4380.,4379
• Citation: 229 F. 516
• Parties: MORRIS v. UNITED STATES. CRAIG v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

229 F. 516

MORRIS v. UNITED STATES.

CRAIG v. SAME.

Nos. 4379, 4380.

United States Court of Appeals, Eighth Circuit.

January 18, 1916

[Copyrighted Material Omitted] [Copyrighted Material Omitted] S. B. Amidon and Jean Madalene, both of Wichita, Kan., for plaintiffs in error.

Isaac D. Taylor, of Guthrie, Okl. (John A. Fain, of Lawton, Okl on the brief), for the United States.

Before ADAMS and CARLAND, Circuit Judges, and TRIEBER District Judge.

TRIEBER District Judge.

The defendants were indicted, charged with violations of the act of Congress of February 13, 1913 (37 Stat. 670). There were three counts in the indictment; but, as the defendants were only convicted on the first and second counts, the third need not be considered.

The first count charges the defendants with entering a car, in the Western district of Oklahoma, belonging to the Atchison, Topeka & Santa Fe Railway Company (giving a description of the numbers and letters on the car), containing a shipment of shoes consigned by the W. L. Douglas Shoe Company at Brockton, Mass., to the Boot & Shoe Hospital, at Los Angeles, Cal., while en route between these two points, with the intent to commit larceny therein, the shipment being an interstate shipment. The second count charges the crime of larceny from the same car.

The sufficiency of the indictment is attacked upon several grounds. It is claimed that the act is unconstitutional, as Congress possesses no police power; that being reserved to the states. While it is true that the states reserved the police power to themselves, it is now equally well settled that as to those powers, which are expressly granted to Congress by the national Constitution, it possesses a power analogous to that of the police power. In re Debs, 158 U.S. 564, 15 Sup.Ct. 900, 39 L.Ed. 1092; Camfield v. United States, 167 U.S. 518, 17 Sup.Ct. 864, 42 L.Ed. 260; Hoke v. United States, 227 U.S. 308-323, 33 Sup.Ct. 281, 57 L.Ed. 523, 43 L.R.A. (N.S.) 906, Ann. Cas. 1913E, 905; United States v. Shauver (D.C.) 214 F. 154. In Hoke v. United States, Mr. Justice McKenna, delivering the unanimous opinion of the court, after reviewing the former decisions of the court, said:

'The principle established by the cases is a simple one, when rid of confusing and distracting considerations, that Congress has power over transportation 'among the several states,' that the power is complete in itself, and that Congress, as an incident to it, may adopt, not only means necessary, but convenient, to its exercise, and the means may have the quality of police regulations.'

By the commerce clause Congress has the power to regulate all interstate commerce, and consequently to protect it from destruction or depreciation, the same power which it possesses under that clause of the Constitution which grants it the power to establish the Post Office Department. Nor does it matter that the same offense, breaking into a railroad car, for the purpose of committing larceny therein, and the larceny itself, may be punished under the laws of the state where the offense is committed, as it is now well settled that certain acts may be in violation of both state and national Penal Codes, and may be prosecuted in either of these courts. Houston v. Moore, 5 Wheat. 1, 5 L.Ed. 19; Fox v. Ohio, 5 How. 410, 12 L.Ed. 213; United States v. Marigold, 9 How. 560, 13 L.Ed. 257; United States v. Arjona, 120 U.S. 479, 7 Sup.Ct. 628, 30 L.Ed. 728; Cross v. North Carolina, 132 U.S. 131, 10 Sup.Ct. 47, 33 L.Ed. 287. There is no reason for doubting the constitutionality of the act.

The sufficiency of the indictment is also attacked upon a number of grounds. It is claimed that neither of the counts is specific enough.

In the first count the indictment follows the language of the statute, and describes specifically the car which was broken into, that it was the property of the Atchison, Topeka & Santa Fe Railway Company, that it contained an interstate shipment from the state of Massachusetts to the state of California, gives the name of the consignor in Massachusetts, and the consignee in California, and that the breaking into the car was with the intent to commit larceny therein.

The second count also follows the language of the statute, charging that it was an interstate shipment, as charged in the first count, describes the property stolen, and, in fact, describes the larceny with all the particularity required by the common law. It charges all the facts necessary to enable the defendants to prepare for their defense, and to plead former jeopardy in case they are again indicted for these offenses, after an acquittal or conviction on this indictment. This is all that is necessary. Potter v. United States, 155 U.S. 438, 15 Sup.Ct. 144, 39 L.Ed. 214; Jolly v. United States, 107 U.S. 402, 18 Sup.Ct. 624, 42 L.Ed. 1085; Considine v. United States, 112 F. 342, 50 C.C.A. 272; Bowers v. United States, 148 F. 379, 78 C.C.A. 193; Thompson v. United States, 202 F. 401, 120 C.C.A. 575, 47 L.R.A. (N.S.) 206; Breese v. United States, 226 U.S. 1, 33 Sup.Ct. 1, 57 L.Ed. 97. The tendency of most of the courts at this day, and especially the Supreme Court of the United States, is to disregard technicalities, which can in no way be prejudicial.

It is also claimed that the indictment is defective, as it fails to allege that the railway company, the owner of the car, was an incorporated company. In view of section 1025, Rev. Stat. (Comp. St. 1913, Sec. 1691), this is unnecessary, as we are unable to see how that omission can have any tendency to the prejudice of the defendant. Caha v. United States, 152 U.S. 211-221, 14 Sup.Ct. 513, 38 L.Ed. 415; Frisbie v. United States, 157 U.S. 161-164-168, 15 Sup.Ct. 586, 39 L.Ed. 657; Connors v. United States, 158 U.S. 408-411, 15 Sup.Ct. 951, 39 L.Ed. 1033; New York Central Railroad Company v. United States, 212 U.S. 481-497, 29 Sup.Ct. 304, 53 L.Ed. 613; Clement v. United States, 149 F. 305, 79 C.C.A. 243, decided by this court, and in which certiorari was denied.

Under similar statutes of many states it has been held that it is unnecessary to charge in the indictment that the company, whose house was broken into, or whose property stolen, was an incorporated corporation. Burke v. State, 34 Ohio St. 79; People v. Rogers, 81 Cal. 209, 22 P. 592; Fisher v. State, 40 N.J.Law, 169; State v. Simas, 25 Nev. 432, 62 P. 242.

It is next claimed that there can be no conviction on both counts. But this has been adversely decided in Morgan v. Devine, 237 U.S. 632, 35 Sup.Ct. 712, 59 L.Ed. 1153. Besides, the sentences on both counts are the same and concurrent.

The next assignment of error complains of the admission of some of the testimony of H. S. Brookhauser, who was jointly indicted with the defendants in error, and who was called as a witness for the government. The question objected to was:

'What opinion, if any, did you give as to where the shoes were at the time?'

Standing alone, it would seem to be wholly irrelevant; but, when taken in connection with the other evidence, it was properly admitted by the court. This witness was the rear brakeman of the freight train; the defendants being other employes on that train. It appeared that two of the shoes stolen were for the same foot, and the mates were found when the box was opened by the consignee, upon its arrival in California. These were the two shoes which were sold by this witness to his brother, and the object of the question was for the purpose of identifying them. His answer was:

'I asked my brother where shoes were. He said he had sent

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