Oliver v. United States

Decision Date07 February 1916
Docket Number2586.
PartiesOLIVER v. UNITED STATES.
CourtU.S. Court of Appeals — Ninth Circuit

Rehearing Denied March 6, 1916.

H. W Hutton, of San Francisco, Cal., for plaintiff in error.

John W Preston, U.S. Atty., of San Francisco, Cal.

Before GILBERT and ROSS, Circuit Judges, and RUDKIN, District Judge.

ROSS Circuit Judge.

Upon an indictment charging him with an assault with intent to commit rape upon a certain named woman on the high seas while on board of a certain named American vessel, the plaintiff was convicted by the verdict of a jury, upon which verdict judgment of imprisonment was entered against him by the court below, from which judgment the case is brought here by writ of error.

The objections made on behalf of the plaintiff in error to the sufficiency of the proof to support the verdict are, we think, wholly without merit, for which reason we refrain from going into the details of the heinous offense. Nor do we think that the plaintiff in error has any just cause of complaint in respect to the action of the trial court in the matter of instructions to the jury. The charge of the learned judge was fair, and fully covered the crime charged and the case made by the evidence.

But it is insisted on behalf of the plaintiff in error that the indictment was and is without any basis in law, for the asserted reason that there is no statute of the United States defining rape or an attempt to commit that crime. It is, of course, readily conceded that the federal courts have no common-law jurisdiction in criminal cases, and that it is essential to the exercise of such jurisdiction by those courts that Congress shall have first made the act a crime affixed a punishment to it, and declared the court that shall have jurisdiction of it. Decisions to that effect are so numerous that they need not be cited.

The power of Congress to do so is given by subdivision 10 of section 8 of article 1 of the Constitution, in these words:

'To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.'

By the Criminal Code of the United States it is, among other things, provided in section 276:

'Whoever shall assault another with intent to commit murder, or rape, shall be imprisoned not more than twenty years. Whoever shall assault another with intent to commit any felony, except murder, or rape, shall be fined not more than three thousand dollars, or imprisoned not more than ten years, or both. * * * '

And section 278 of the same Code is as follows:

'Whoever shall commit the crime of rape shall suffer death.'

The contention on behalf of the plaintiff in error is that those provisions of the statute in respect to rape and assault with intent to commit that crime are void, in that they do not define what constitutes rape. In 1820, in the case of United States v. Smith, 5 Wheat. 153, 5 L.Ed. 57, the Supreme Court had before it for consideration an indictment founded upon a statute which provided:

'That if any person or persons whatsoever shall upon the high seas commit the crime of piracy as defined by the law of nations, and such offender or offenders shall be brought into or found in the United States, every such offender or offenders shall upon conviction thereof be punished with death.'

And it was there contended that that statute was of no force or effect because the crime of piracy was not therein defined; and one of the justices of the court so held in a dissenting opinion.

In delivering the opinion of the court Mr. Justice Story said:

'The argument which has been urged in behalf of the prisoner is that Congress is bound to define, in terms, the offense of piracy, and is not at liberty to leave it to be ascertained by judicial...

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  • Chenery Corporation v. Securities and Exchange Com'n
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 27 Abril 1942
    ...certiorari denied, 310 U.S. 644, 60 S.Ct. 1096, 84 L.Ed. 1411; United States v. Cardish, D.C.E.D.Wis., 143 F. 640, 642; Oliver v. United States, 9 Cir., 230 F. 971, 973, certiorari denied, 241 U.S. 670, 36 S.Ct. 721, 60 L.Ed. 1230. 8 Federal Trade Commission v. R. F. Keppel & Bro., Inc., 29......
  • United States v. Marrowbone
    • United States
    • U.S. District Court — District of South Dakota
    • 26 Noviembre 2014
    ...18 U.S.C. § 2031, repealed by Sexual Abuse Act of 1986, P.L. 99-646 § 86, 100 Stat. 3592, 3623 (1986); see also Oliver v. United States, 230 F. 971, 973-74 (9th Cir. 1916) ("[B]y giving a crime a name known . . . to the common law a crime is not less clearly ascertained than it would be by ......
  • United States v. Gilbert, CR 73-5019.
    • United States
    • U.S. District Court — District of South Dakota
    • 25 Mayo 1974
    ...to give that term its common-law meaning." See, also, Levinson v. United States, 47 F.2d 470 (C.A. 6th Cir. 1931); Oliver v. United States, 230 F. 971 (C.A. 9th Cir. 1916); United States v. Brandenburg, 144 F.2d 656 (C.A. 3rd Cir. It is also true that the court in United States v. Kagama, 1......
  • U.S. v. Cherry
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 22 Agosto 1991
    ...statute must be more than "simply a circular reiteration of the offense" to affect void for vagueness analysis).9 Cf. Oliver v. United States, 230 F. 971, 973 (9th Cir.) (Congress may use "rape" or other terms "known to the law of nations or to the common law" without creating unconstitutio......
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