Shilter v. United States
| Citation | 257 F. 724 |
| Decision Date | 12 May 1919 |
| Docket Number | 3252. |
| Parties | SHILTER v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Arnold W. Liechti, of San Francisco, Cal., for plaintiff in error.
Annetta A. Adams, U.S. Atty., of San Francisco, Cal., and John W Preston, Sp. Asst. Atty. Gen., and P. H. Johnson, Asst. U.S Atty., of Sacramento, Cal.
Before GILBERT, MORROW, and HUNT, Circuit Judges.
The plaintiff in error was convicted under an indictment which charged that on 'divers dates between the 1st day of January, 1918, and the 6th day of May, 1918,' at Sacramento, Cal., he did 'then and there unlawfully willfully, and knowingly attempt to cause insubordination, disloyalty, and refusal of duty in the military and naval forces of the United States, with the intent on the part of him, the said defendant, to interfere with the operation and success of the military and naval forces of the United States and to promote the success of its enemies; that is to say, the said defendant did then and there make the following seditious statements, to wit. ' Then follow the statements. There was no demurrer to the indictment, no exceptions were taken at the trial, and no motion in arrest of judgment was made.
The plaintiff in error raises in this court for the first time the objection that the indictment is fatally defective for want of averments setting forth the circumstances under which the seditious utterances were made and the persons to whom they were made. Dunbar v. United States, 156 U.S 185, 15 Sup.Ct. 325, 39 L.Ed. 390, is authority for the proposition that a defendant who waits until after verdict before taking an objection to the sufficiency of the indictment waives all objections which run to the mere form in which the various elements of the crime are stated, or to the fact that the indictment is inartificially drawn. We take that decision as expressing in full the nature of the objections to an indictment which may be waived by nonaction in a trial court, objections to the form in which the elements of the crime are stated, and objections to the fact that the indictment is inartificially drawn; and it follows that objections which affect the substantial rights of the defendant are not thus waived, and they may be presented for the first time on writ of error. 'Defects in substance are not cured by verdict' (22 Cyc. 485), nor is a failure to state facts sufficient to constitute an...
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