Norris v. United States, 11398.
| Decision Date | 09 February 1946 |
| Docket Number | No. 11398.,11398. |
| Citation | 152 F.2d 808 |
| Parties | NORRIS et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bernard A. Golding, of Houston, Tex., for appellants.
Brian S. Odem, U. S. Atty., and Joseph W. Cash and James K. Smith, Asst. U. S. Attys., all of Houston, Tex., for appellee.
Appellants were convicted of robbery under 18 U.S.C.A. § 99, and sentenced to pay a fine and serve a term in prison. They severally seek reversal of the judgments on the grounds that the trial court erred (a) in overruling their demurrers and (b) in denying their motions for directed verdicts.
Count one of the indictment, upon which the convictions rest, is in the language of the statute. It charges, inter alia, that the appellants "did rob one Frank Clarkson of an automobile (describing it) belonging to the United States" contrary to the statute and against the peace and dignity of the United States. The proof, which amply supports the charge, shows that Clarkson was a federal game warden using a government owned car when the robbery was committed. He was in the car when the appellants, by violence and by putting him in fear, compelled him to surrender control and possession thereof to them.
Robbery in its usual and ordinary sense, and as used in the statute, means the felonious taking of property from the person of another by violence or by putting him in fear. A felonious taking in his presence is a taking from the person when it is done with violence and against his will. The taking must be by violence or putting him in fear; but both of these circumstances need not concur; "for if a man should be knocked down, and then robbed while he is insensible, the offense is still robbery;" and if the party be put in fear by threats and then robbed, it is not necessary that there should be any greater violence. The violence or putting in fear must be at the time of the act or immediately preceding it. One who is present and aids or abets a robbery is punishable as a principal, though he receives none of the money; and the amount taken is immaterial.
After the demurrers were overruled, the appellants pleaded not guilty and were put to trial upon the merits. The case was tried exactly as it would have been if the indictment had been perfect, and just like it would be if a new trial were granted. The questions presented on this appeal are whether the indictment was defective and, if so, whether the substantial rights of the parties were prejudicially affected.
By the Act of February 26, 1919, 28 U.S.C.A. § 391, it is provided that, on the hearing of any appeal, the court shall give judgment after an examination of the entire record, without regard to "technical errors, defects, or exceptions which do not affect the substantial rights of the parties." This is a highly remedial statute, and should not be confused with the earlier statute (18 U.S.C.A. § 556) to the effect that no indictment shall be deemed insufficient by reason of any defect of form only, which shall not tend to the prejudice of the defendant. One statute requires us to examine the entire record and give judgment without regard to errors that do not affect substantial rights; the other deems insufficient all formal defects in indictments that do not "tend to the prejudice" of the accused. Reading the two statutes together, it seems that if substantial rights are not affected by an error in the indictment, such error does not tend to the prejudice of the defendant. Therefore, after an examination of the entire record, if we find that the substantial rights of the appellants were not prejudicially affected, we are constrained to give judgment without regard to any imperfection in the indictment.
In its last analysis, our decision must rest upon the later statute (28 U.S. C.A. § 391), and not upon the earlier one (18 U.S.C.A. § 556), which is directed primarily to the trial court and requires it to disregard any imperfection in the matter of form that "shall not tend to the prejudice of the defendant." The later statute is directed to the reviewing court and requires it, after examining the entire record, to disregard any error of the trial court that, regardless of its tendency, caused no prejudice to the defendant. This means that no new trial is to be granted for an abstract error which the whole record shows did no practical harm to the defendant.
We think the questions here turn upon whether the defendants were fully informed of the nature and cause of the accusation against them. If so, they were not prejudiced by the omission from the indictment of a distinct and separate allegation that the robbery was perpetrated by violence or by putting in fear. Since the omitted elements are included in the meaning of the word rob when used in an indictment, we think the substantial rights of the defendants were not affected by the omission. By turning to a dictionary, the appellants could have informed themselves that the word rob means, in law, "to take the property of (any one) from his person, or in his presence, feloniously and against his will, by violence or by putting him in fear."1
Technical pleading would require only that and be substituted for or between "by violence or by putting him in fear," otherwise the definition in the dictionary contains all the elements required by the most punctilious observance of common-law pleading. The plain mandate of the statute is that an error of this character should be disregarded on appeal.
It is no longer necessary in the federal courts to follow the old common-law rules of criminal pleading; nor is it required to charge the offense in the language of the definition of the words used in the statute. There is only one exception to the rule that an indictment in the language of the statute is sufficient. The exception applies where the words of the statute do not contain all the essential elements of the offense, as in United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135, wherein a statute against passing counterfeit money failed to mention the scienter. In a later decision, the Carll case was distinguished; the court said that it is for the defendant to show that greater particularity is required; and that where the statute completely covers the offense, the indictment need not be made more complete.2
In the instant case, the defendants never asked for a bill of particulars, but requested the court to charge the jury on the subject of robbery. The court gave the requested charge, which dealt...
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