Nye v. United States, 5070.

• Decision Date: 11 October 1943
• Docket Number: No. 5070.,5070.
• Citation: 137 F.2d 73
• Parties: NYE v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

137 F.2d 73 (1943)

NYE v. UNITED STATES.

No. 5070.

Circuit Court of Appeals, Fourth Circuit.

July 22, 1943.

Writ of Certiorari Denied October 11, 1943.

L. R. Varser, of Lumberton, N. C. (R. A. McIntyre and O. L. Henry, both of Lumberton, N. C., on the brief), for appellant.

Robert S. McNeill, Asst. U. S. Atty., of Greenboro, N. C. (Carlisle W. Higgins, U. S. Atty., and Bryce R. Holt, Asst. U. S. Atty., both of Greenboro, on the brief) for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

Writ of Certiorari Denied October 11, 1943. See 64 S.Ct. 62, 88 L.Ed. ___.

PARKER, Circuit Judge.

This is an appeal from a conviction and sentence under a count of an indictment charging wilful and corrupt obstruction of justice in violation of section 135 of the Criminal Code, 18 U.S.C.A. § 241. Appellant is one R. H. Nye, who was charged with contempt of court because of the same obstruction of justice in a case which was before this court in Nye v. United States, 4 Cir., 113 F.2d 1006, and before the Supreme Court in Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172. The Supreme Court held that the conduct of Nye and one Mayers, who was charged with him, could not be punished as contempt of court under section 268 of the Judicial Code, 28 U.S.C.A. § 385, but that, if the facts found in that case were taken to be true, it was "highly reprehensible" and "of a kind which corrupts the judicial process and impedes the administration of justice". 313 U.S. 52, 61 S.Ct. 817, 85 L. Ed. 1172. Following this, Nye and Mayers were indicted under a bill of indictment containing two counts, the first charging conspiracy to obstruct justice and the second charging the obstructing of justice. Mayers was acquitted generally, whereas Nye was acquitted on the first count of the indictment but convicted on the second, which is as follows:

"That Rufus Howard Nye and Lonnie Cicero Mayers, the defendants herein, on or about April 19, 1939, in the Middle District of North Carolina, and within the jurisdiction of this Court, unlawfully, wilfully, knowingly and feloniously did corruptly influence, obstruct and impede, and corruptly endeavor to influence, obstruct and impede the due administration of justice in the Court of the United States for the Middle District of North Carolina, that is to say, the said defendants then and there corruptly did endeavor to have dismissed in said Court of the United States a civil action then pending under the number 11 on the Durham docket of the Clerk of the Court for said district, being entitled W. H. Elmore, Administrator of James Elmore, deceased, v. C. T. Council and Germain Bernard, partners trading as BC Remedy Company, which said action had not yet come to trial on the merits, that is to say, said defendants did then and there cause to be filed with said Court of the United States false and fraudulently obtained letters and affidavits concerning said action, they the said defendants by such conduct thereby causing delay in the trial of said case and great expense in connection therewith, and did in truth and in fact then and there thereby corruptly influence, obstruct and impede the due administration of justice in said Court of the United States; contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States of America."

The conduct of Nye constituting the offense was described in detail in our opinion reported in 113 F.2d 1006, and we need not describe it again. It is sufficient to say that there was evidence before the jury tending to show all the facts set forth in our former opinion, i.e. the pendency of an action for damages brought by one Elmore as administrator, the undue influence by use of liquor and otherwise to overreach Elmore and take advantage of him, and the obtaining from Elmore by these means of letters and affidavits, which were used in an effort to secure a dismissal of the case and which resulted in delays and obstructions to the due administration of justice. On this appeal only three points are made. (1) that the count of the indictment under which conviction was had was not sufficient, (2) that the court erred in denying defendant's motion for bill of particulars, and (3) that verdict of acquittal should have been directed because evidence as to statements of the defendant exonerates him of the charge, because it did not appear that the court had jurisdiction of the damage suit, because Elmore had not been properly appointed as administrator and because the indictment was insufficient.

We think that the count of the indictment under which Nye was convicted sufficiently charges an offense under section 135 of the Criminal Code. Not only was there a general charge, substantially in the words of the statute, of corruptly obstructing and corruptly endeavoring to obstruct the due administration of justice, but this general charge was supplemented by an averment of the means used. It was specifically charged that the defendants corruptly endeavored to have an action pending in the court dismissed by filing false letters and affidavits which had been fraudulently obtained and that this conduct resulted in delay in the trial of the action and great expense in connection therewith. The letters and affidavits were specifically described in the overt acts set forth in the first, or conspiracy, count of the indictment and, while this does not, of course, help the second count, we do not think that count should be held defective for failure to repeat them or to incorporate them by reference. If defendant felt the need of additional information in preparing his defense, his remedy was motion for bill of particulars; and the record shows that, upon his making such motion, he was advised by the representative of the government that the letters and affidavits relied on were those described in the first count.

The rule here applicable was well stated by the Supreme Court in Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861, as follows: "The rigor of old common-law rules of criminal pleading has yielded, in modern practice, to the general principle that formal defects, not prejudicial, will be disregarded. The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, `and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.' Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 630, 39 L.Ed. 704; Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 480, 40 L.Ed. 606."

The same rule was laid down by this Court, speaking through Judge Rose in Martin v. United States, 4 Cir., 299 F. 287, 288, in the following language: "The sufficiency of a criminal pleading should be determined by practical, as distinguished from purely technical, considerations. Does it, under all the circumstances of the case, tell the defendant all that he needs to know for his...