Salinas v. United States

• Decision Date: 19 May 1960
• Docket Number: No. 16231.,16231.
• Citation: 277 F.2d 914
• Parties: Natividad SALINAS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

277 F.2d 914 (1960)

Natividad SALINAS, Appellant, v. UNITED STATES of America, Appellee.

No. 16231.

United States Court of Appeals Ninth Circuit.

May 2, 1960.

Rehearing Denied May 19, 1960.

Taylor & Taylor, Warren A. Taylor, Warren Wm. Taylor, Fairbanks, Alaska, Fred D. Crane, Kotzebue, Alaska, for appellant.

Russell R. Hermann, U. S. Atty., Nome, Alaska, for appellee.

Before HAMLEY, JERTBERG and KOELSCH, Circuit Judges.

KOELSCH, Circuit Judge.

The appellant, Natividad Salinas, was accused of the crime of arson in the first degree by the first count of a two-count indictment filed in the United States District Court for the Territory (now State) of Alaska. The second count charged him with an offense designated as "burning to defraud insurer."¹ With respect to the first count, the trial court instructed the jury that the charge of arson in the first degree as set out in the indictment included a charge of arson in the second degree. The jury acquitted the appellant of the crime set out in Count Two of the indictment, but found him "guilty of the crime of arson in the second degree as included in the offense charged in Count No. 1 of the Indictment."

The sole ground urged by appellant for reversal of the judgment is that the indictment did not charge him with the crime of which he was convicted — that is, arson in the second degree.² The language of the first count of the indictment, so far as need be noticed here, is as follows:

That * * * the defendant Natividad Salinas willfully and maliciously set fire to and burned a dwelling house which contained a restaurant known as the Kotzebue Grill and which contained living rooms on the second floor * * *

By Alaska statute, anyone who willfully burns "* * * any dwelling house * * * or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto * * *" is guilty of "arson in the first degree" and subject to imprisonment for not less than two nor more than twenty years. Sec. 65-5-1, A.C.L.A. Supplement. The provisions of the statute immediately following the one just referred to provide that any person who similarly burns "* * * any building or structure of whatsoever class or character * * * not included * * * in the preceding section," is guilty of "arson in the second degree" and subject to a lesser penalty. Sec. 65-5-2, A.C.L.A. Supplement.

Due process requires that one accused of crime must be fully apprised of the nature and cause of the charge against him; to that end, an indictment must contain an averment of every essential element of the crime with which he is charged in order that he may prepare his defense. Moore v. Missouri, 1895, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301; Hodgson v. Vermont, 1897, 168 U.S. 262, 18 S.Ct. 80, 42 L.Ed. 461.

Every criminal offense is made up of several elements. Frequently some, but not all, of the elements peculiar to one offense are common to another offense or crime and are sufficient in themselves to constitute a complete criminal offense. A clear illustration of this is provided by the crime of "assault with a deadly weapon," which as the designation itself implies, includes as a necessary constituent the crime of "assault" as well as the added element requiring use of a deadly weapon. In this situation the constituent offense as assault is "necessarily included" in the commission of the crime of assault with a deadly weapon, with the latter being the greater and the former the lesser crime. An indictment charging the greater offense would of necessity embrace all the elements of the lesser offense and apprise the accused that he was charged with the commission of the acts constituting the lesser offense. People v. Kerrick, 1904, 144 Cal. 46, 77 P. 711; State v. Woolman, 1934, 84 Utah 23, 33 P.2d 640, 93 A.L.R. 723.

Similarly, a particular crime charged might embrace a lesser crime within its averments, depending upon the manner in which the major offense was committed. A particular instance is the crime of murder, which may be committed in numerous ways: if the indictment charged a homicide committed by force and violence, then an indictment setting out the manner in which the murder was committed would also embrace the constituent offenses of assault and battery, not as "necessarily included" offenses, but by reason of the statement showing the particular manner in which the greater offense was committed. Ex parte McLeod, 1913, 23 Idaho 257, 128 P. 1106, 43 L.R.A.,N.S., 813; People v. Miller, 1911, 143 App.Div. 251, 128 N.Y.S. 549. Here too, the indictment would apprise the accused that he was charged with all of the acts which constituted the elements, and were necessary for commission, of the lesser offenses.

Often a particular crime is graded or classified into degrees "* * * in order that the punishment may be adjusted with reference to the presence or absence of circumstances of aggravation." Davis v. Utah Territory, 1893, 151 U.S. 262, 266, 14 S.Ct. 328, 329, 38 L.Ed. 153. Where a substantive crime is so divided, the elements necessary to the commission of the crime itself are the same in each instance, but the degree of culpability differs depending upon the category in which the circumstances place the offense. For example, in State v. Colgate, 1884, 31 Kan. 511, 3 P. 346, 348, the court, in considering the statutes of Kansas which divided the offense of arson into four degrees, stated:

"The generic offense seems to be the willful setting fire to or burning property to the injury of another. This offense may, in some one or more of its different degrees, be committed at any time and with respect to any tangible combustible property, except, perhaps, some kinds of real estate; and the offense may be aggravated, mitigated, or modified by many circumstances, so as to place it in one or another of several of the four different degrees."

Thus, where the indictment sets out a crime divided into degrees the defendant is put on notice of the particular offense charged against him together with any aggravating circumstances appearing by additional averments. State v. Colgate, supra; State v. Eubanks, 1956, 77 Idaho 439, 294 P.2d 273.

The well settled rule, recognized in Alaska by two statutes,³ is that when an indictment charges a crime in which a lesser offense is necessarily included, or charges a higher degree of a particular offense that is divided into degrees, the accused, although acquitted of the greater offense or of the higher degree of the same offense may, consistent with the requirements of due process, be convicted of a lesser included offense or a lower degree of the offense charged. State v. Colgate, supra; Ex parte McLeod, supra; 4 Wharton's Crim.Law & Proc. (12 Ed.1957), Sec. 1799. As stated in State v. Colgate, supra, 3 P. at page 348:

"* * * when the information or indictment charges the defendant with committing one of the higher degrees, he may be found guilty of that degree, or of any inferior degree, or of any offense included therein, or of an attempt to commit the offense * * * however, the defendant can be found guilty of the offense, or of a degree thereof, or of an attempt to commit the same, only where the facts

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