Smith v. United States
| Decision Date | 26 September 1913 |
| Docket Number | 3,911. |
| Citation | 208 F. 131 |
| Parties | SMITH v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Guy A Miller, of Detroit, Mich. (Orville S. Franklin, of Des Moines, Iowa, on the brief), for plaintiff in error.
Marcellus L. Temple, of Osceola, Iowa, for the United States.
Before SANBORN and CARLAND, Circuit Judges, and WILLARD, District judge.
The defendant below was indicted in September, 1911, for devising a scheme to defraud by the use of the mails, and mailing a letter in execution of this scheme, in the year 1908. In 1908 this was an offense under section 5480 of the Revised Statutes as amended by Act March 2, 1889, c. 393, 25 Stat 873 (U.S. Comp. St. 1901, p. 3697). That section was repealed; it was provided that offenses committed under it prior to January 1, 1910 might be prosecuted and punished in the same manner and with the same effect as if it had not been repealed, and section 215 of the Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1130 (U.S. Comp. St. Supp. 1911, p. 1653)), which denounces a similar offense and prescribes a more severe punishment for it was put in force on January 1, 1910, by the act of March 4, 1909, to codify, revise and amend the Penal Laws of the United States. 35 Stat. c. 321, p. 1088; section 341, p. 1153; section 343, p. 1159; section 215, p. 1130. The record of the court below is that the grand jurors on September 20, 1911, returned of the Criminal Code, * * * which said indictment is in words and figures, as follows,' and the indictment set forth in the record properly charges the offense to have been committed in 1908. On the back of the indictment there appears the title of the case and ' The bench warrant for the defendant's arrest recited that an indictment charging him 'with the crime of violating the postal laws of the United States, to wit, section 215 of the Criminal Code,' had been returned. The criminal code docket of the court contains, under the title of the case, the notation, and in a similar place in the judge's docket are the words and figures, 'Kind of Action, Vio. Sec. 215 Crim. Code. ' At the close of the evidence the accused moved for a directed verdict on the ground that he had been arraigned and tried for a violation of section 215 of the Criminal Code, an ex post facto law. The court denied the motion and the defendant specifies this ruling as error.
But he was not required to answer the notation on the back of the indictment or the statements in the record, aside from the indictment, of the nature of the offense with which he was charged. The only charge against which he was arraigned to plead or to defend was that in the indictment. That charge was plain and clear. It was that he devised a scheme to defraud to be effected by the use of the mails and deposited a letter in execution of the scheme in 1908, 'contrary to the form of the statute in such case made and provided. ' The indictment specified no statute. The offense alleged therein was not a violation of section 215 of the Criminal Code because that section was not in force in 1908. It was a violation of section 5480 of the Revised Statutes, as amended. The accused was defended by counsel learned in the law. They and he must be presumed to have known, and we doubt not that they did know, what statute denounced the offense charged in the indictment. The sentence of the court was within the limit of punishment fixed by section 5480, as amended, and there is no merit in the specification of error here presented. The erroneous naming on the back of a good indictment for a violation of one statute and in the records of the court, of the offense charged as a violation of another statute of which it is not a violation, is not fatal to a trial and conviction under the indictment, because it is the charge in the indictment only and not that in the notation on its back or in the other records of the court against which the accused is called to defend himself.
The court instructed the jury that the defendant was charged with...
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Sandals v. United States
... ... 1130 ... And, ... moreover, section 343 expressly authorizes the prosecution ... and punishment of offenses committed prior to enactment of ... the Penal Code 'in the same manner and with the same ... effect as if this act had not been passed.' 35 Stat. p ... 1159; Smith v. United States, 208 F. 131, 132, 125 ... C.C.A. 353 (C.C.A. 8th Cir.). It cannot be, then, that where ... only the devising of the scheme occurred before the passage ... of the act, its execution thereafter is any the less an ... Enough ... has been said to dispose of the objection ... ...
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United States v. De Angelo, 8319.
...denial of the evidence offered against him by the prosecution pursuant to its ever-present burden of proof. Cf. Smith v. United States, 8 Cir., 208 F. 131, 133; Prettyman v. United States, 6 Cir., 180 F. 30, Among the facts so litigated and submitted for the jury's determination at the tria......
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State v. Grassy
... ... find every material issue against defendant. Smith v ... United States, 126 C. C. A. 353, 208 F. 131; 27 R. C. L ... L. H ... ...
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Gammon v. United States
...scheme should have been proved to have been devised prior to the alleged use of the mails to carry it into effect (Smith v. United States, 208 F. 131, 133, 125 C. C. A. 353) it is difficult to understand how the defendant could have been lawfully convicted under the evidence in this case. I......