Skelley v. United States, 60.

• Decision Date: 04 January 1930
• Docket Number: No. 60.,60.
• Citation: 37 F.2d 503
• Parties: SKELLEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

37 F.2d 503 (1930)

SKELLEY v. UNITED STATES.

No. 60.

Circuit Court of Appeals, Tenth Circuit.

January 4, 1930.

Harvey Roney, of Kansas City, Mo., for appellant.

Roy St. Lewis, U. S. Atty., of Oklahoma City, Okl. (Herbert K. Hyde, Asst. U. S. Atty., of Oklahoma City, Okl., on the brief), for the United States.

Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.

LEWIS, Circuit Judge.

The appellant was tried, convicted and sentenced to four years' confinement in the penitentiary and to pay a fine of $250 on an indictment which charges that defendant "heretofore, to-wit, on or about April 26, 1928, at Oklahoma City, Oklahoma, in the Western District of Oklahoma, within the jurisdiction of this court, then and there being, did then and there violate a requirement of the Act of Congress of February 9, 1909, as amended January 17, 1914, and as amended May 26, 1922 (21 USCA §§ 171-177, 180, 182, 184, 185) in that he, the said defendant, did then and there wilfully, unlawfully, knowingly, feloniously and fraudulently receive, conceal, buy and facilitate the transportation and concealment after importation of about one and one-half pounds of smoking opium, which said smoking opium, as the said defendant then and there well knew, had been imported into the United States of America contrary to law, 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 charge was based on a statute which reads in this way: "If any person * * * receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported contrary to law, such person shall upon conviction be fined not more than $5,000 and imprisoned for not more than ten years." Title 21, § 174, U. S. Code (21 USCA § 174). A demurrer to the charge on the ground that it was vague, indefinite and uncertain was overruled, and that ruling is assigned as error.

Disregarding that part of the charge that appellant acted in violation of certain named Acts of Congress, which is a mere conclusion, the remaining part does no more than to follow the language of the statute defining the crime. Oklahoma City has a population of about 150,000, and of course, there are innumerable places therein where the crime charged might have been committed. The police officers who made the arrest and discovered the drug in the possession of appellant gave the name of the street and the street number in their testimony, where the drug was found; but for some inexplainable reason the pleader did not put the location in the indictment. Nor did he otherwise "earmark" the charge as Judge Booth aptly terms it in Myers v. United States (C. C. A.) 15 F.(2d) 987 et seq., so as to separate and make certain from the general charge therein contained the particular offense of which appellant was accused and was to be put on trial. That was the point of the demurrer now urged here. So there is nothing in the charge that would prevent a like charge, prosecution and trial again for the same offense. The Fifth and Sixth Amendments to the Constitution of the United States require that the indictment inform the accused of the nature and cause of the accusation; and that purpose is twofold, it must be sufficiently certain as a pleading to enable the defendant to make his defense, and also sufficiently certain to enable him to plead jeopardy if he should be indicted again. Rosen v. United States, 161 U. S. 29, 34, 16 S. Ct. 434, 480, 40 L. Ed. 606. If indicted a second time a comparison of the two records of the charge would determine without more the plea of former jeopardy. The question raised by the demurrer had repeated consideration in the Eighth Circuit, and two of the judges now sitting participated in some of the cases that applied the established rule. It hardly seems that we should repeat the reasoning found in those cases on which the conclusions were reached. They are, Fontana v. United States, 262 F....