Sotorios Targakis v. United States

• Decision Date: 08 April 1926
• Docket Number: No. 4657.,4657.
• Citation: 12 F.2d 498
• Parties: SOTORIOS TARGAKIS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

12 F.2d 498 (1926)

SOTORIOS TARGAKIS v. UNITED STATES.

No. 4657.

Circuit Court of Appeals, Fifth Circuit.

April 8, 1926.

W. K. Zewadski, Jr., and Jo Johnson, both of Tampa, Fla., for plaintiff in error.

Wm. M. Gober, U. S. Atty., of Tampa, Fla., and N. J. Morrison, Sp. Asst. Atty. Gen., for the United States.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

Plaintiff in error, hereafter referred to as defendant, was convicted on an indictment returned in the Southern district of Florida, which charged in substance that on December 11, 1922, at Anclotte village, in Pinellas county, Fla., in the said district and within the jurisdiction of the court, he did unlawfully bring into the United States from the republic of Cuba by means of a vessel, a named alien, who had not theretofore been duly admitted to the United States by an immigration inspector, and was not then and there lawfully entitled to enter and reside within the United States.

Section 8 of the Act of February 5, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, ß 4289ºdd), which was in force at the time the offense is alleged to have been committed, makes it unlawful for any person to bring into or land in the United States by vessel or otherwise any alien not duly admitted by an immigration inspector, or not lawfully entitled to enter or reside within the United States, which offense is punishable by a fine not exceeding $2,000 and by imprisonment for a term not exceeding five years, for each and every alien so landed.

Defendant contends that there was a fatal variance in the proof as to the point of landing, and that in consequence thereof he was entitled to a verdict of acquittal. This point was raised by motion for a directed verdict and requests for special instructions, to the refusal of which error is assigned. We understand the rule as to variance to be that it is not to be regarded as material when the defendant could not have been misled at the trial or the allegation and proof substantially corresponds. See Grayson v. Lynch, 163 U. S. 468, 16 S. Ct. 1064, 41 L. Ed. 230, and authorities therein cited.

There was no doubt that the alien was landed on the coast of Florida within the jurisdiction of the court, and there is evidence tending to show the landing was not very far from the place alleged in the indictment, although, as the alien, a woman, was put ashore at night with her two children, and wandered along for a number of miles before she fell in...