Pellegrino v. Aderhold

• Decision Date: 29 December 1931
• Docket Number: No. 191.,191.
• Citation: 54 F.2d 939
• Parties: PELLEGRINO v. ADERHOLD, Warden.
• Court: U.S. District Court — Panama Canal Zone

54 F.2d 939 (1931)

PELLEGRINO v. ADERHOLD, Warden.

No. 191.

District Court, N. D. Georgia, Atlanta Division.

December 29, 1931.

Frank A. Doughman, of Atlanta, Ga., for petitioner.

Hal Lindsay, Asst. U. S. Atty., of Atlanta, Ga., for respondent.

UNDERWOOD, District Judge.

In an indictment of four counts, petitioner was charged in the first count with conspiring to counterfeit certain federal reserve bank notes; in the second, with counterfeiting the same; in the third, with possession of plates corresponding thereto; and, in the fourth, with unlawfully, knowingly, willfully, and feloniously, "and with intent to defraud," printing "parts of an obligation of the United States, that is to say; three impressions in the likeness of parts of a twenty dollar Federal Reserve note of the Federal Reserve Bank of the City of New York, to-wit; three impressions of the reverse side of such Federal Reserve note, the said defendants then and there well knowing the said impressions to be falsely made, forged and counterfeited."

Upon motion of the United States attorney, the first three counts of the indictment were dismissed as to petitioner, and he thereupon pleaded guilty to the fourth count.

In the three counts which were dismissed, copies of the federal reserve notes, both their face and reverse sides, were set forth in hÊc verba, but for some reason the notes referred to in the fourth count were not so set forth, but were merely described in the words above quoted.

Petitioner contends that the judgment and sentence on the fourth count are void and his imprisonment thereunder unlawful because it does not set forth in hÊc verba the impressions alleged to have been printed, or allege any reason why this was not done; because the description of the impressions is not set forth with such particularity that he might avail himself of conviction thereunder as to bar a further prosecution arising out of the same offense; and because the count does not allege that petitioner intended to defraud the United States.

The last ground of objection is not good, because such allegation is not necessary under the statute upon which the indictment is founded (United States v. Behrman, 258 U. S. 280, 42 S. Ct. 303, 66 L. Ed. 619), and I pass to a consideration of the other two grounds of objection.

With respect to the necessity of setting out in hÊc verba a document which is the gist of an offense, the Circuit Court of Appeals for the Fifth Circuit have said, in the case of Irvin v. United States, 298 F. 297, 298, that, prior to enactment of R. S. ß 1025 (18 USCA ß 556), "at common law in England and the United States, in indictments for forgery and other crimes in which a writing is the very gist of the offense, the instrument involved must be set forth in hÊc verba, or a potent reason alleged for not doing so." But the court strongly intimated, though they did not find it necessary to decide the point, that the failure to set out such instrument in hÊc verba, when otherwise sufficiently described to identify the document, was such technical defect as would be disregarded under the provisions of Criminal Code, ß 556 (R. S. ß 1025), and in this view I concur.

In the case of Bartell v. United States, 227 U. S. 427, 433, 33 S. Ct. 383, 384, 57 L. Ed. 583, the Supreme Court says that "as to the objection that the charge was so indefinite that the accused could not plead the record and conviction in bar of another prosecution, it is sufficient to say that in such cases it is the right of the accused to resort to parol testimony to show the subject-matter of the former conviction, and such practice...