Swafford v. United States

• Decision Date: 12 April 1928
• Docket Number: No. 7952.,7952.
• Citation: 25 F.2d 581
• Parties: SWAFFORD v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

25 F.2d 581 (1928)

SWAFFORD v. UNITED STATES.^*

No. 7952.

Circuit Court of Appeals, Eighth Circuit.

April 12, 1928.

S. M. Cunningham, of Sapulpa, Okl., and W. C. Peters, of Tulsa, Okl., for plaintiff in error.

John M. Goldesberry, U. S. Atty., of Tulsa, Okl. (W. B. Blair, Asst. U. S. Atty., of Tulsa, Okl., on the brief), for the United States.

Before KENYON, Circuit Judge, and SCOTT and SYMES, District Judges.

KENYON, Circuit Judge.

Plaintiff in error was convicted on two counts of an indictment, the first charging him with unlawful possession of intoxicating liquor in the city of Bristow, Creek county, state of Oklahoma, a place within the limits of what had been Indian Territory prior to the admission of Oklahoma into the Union, and where the possession of intoxicating liquor is and was prohibited by federal statutes. The second count alleged a sale of intoxicating liquor at the same place. The indictment was challenged by motion to quash, on the ground that the same was indefinite in description; the place of the alleged possession and sale not being sufficiently identified.

There is no legitimate objection to the second count on this score. The party to whom the sale was alleged to have been made is there named, and this is a sufficient earmark to identify the transaction. Davis v. United States, 24 F.(2d) 814 (opinion this court, filed February 23, 1928). Count 1 of this indictment is distinguishable from the indictment in the Lynch Case (C. C. A.) 10 F.(2d) 947, where the description of the offense was held to be insufficient, only by virtue of the following reference to the place of possession of the liquor, "a more accurate description of the exact place being to the grand jurors unknown."

What is the effect of such phrase in an indictment? It cannot be brushed aside as meaningless, nor can it be used as a mere cure-all for defects in particularity of statement. A grand jury may be satisfied from the evidence before it that a crime has been committed, but may not be able to ascertain by a reasonable investigation the exact place where the crime was committed. This should not preclude prosecution for the offense, and the general averment of lack of knowledge on the part of the grand jury as to the exact place where the alleged crime was committed meets such situation. That averment, to be availing, must be a good-faith one, and not a mere makeshift and sham. In Coffin v. United States, 156 U. S. 432, 451, 15 S. Ct. 394, 402 (39 L. Ed. 481), where a question was raised as to an indictment which stated that the names of certain persons were unknown to the grand jury, and an instruction had been offered in the trial court that, if no evidence had been placed before the jury tending to show that the names of such persons were unknown to the grand jury, then the government's case must fail, the Supreme Court said: "The instruction was rightly refused. It presupposes that, where there is an averment that a person or matter is unknown to a grand jury, and no evidence upon the subject of such knowledge is offered by either side, acquittal must follow, while the true rule is that, where nothing appears to the contrary, the verity of the averment of want of knowledge in the grand jury is presumed." On this subject we quote from a number of cases, viz.:

Foerster v. United States, 116 F. 860, 862 (this court): "It is undoubtedly true that it is a general rule of criminal pleading that in an indictment for selling liquors it is necessary to name the purchaser. But there is an exception to this rule which is as universal and as well established as the rule itself. It is that when the purchaser or purchasers are unknown to the jury, they may be described in the indictment as persons or Indians to the grand jurors unknown."

Miller v. United States, 133 F. 337, 341 (this court), where the indictment charged plaintiffs in error with conspiring to devise a scheme to defraud persons unknown: "Nor is it a tenable objection to an indictment that it fails to state the names of the parties whom the defendants are alleged to have conspired to devise a scheme to defraud, if it contains a true statement that these persons were unknown to the grand jury."

Durland v. United States, 161 U. S. 306, 314, 16 S. Ct. 508, 511 (40 L. Ed. 709): "Further, the omission to state the names of the parties intended to be defrauded and the names and addresses on the letters is satisfied by the allegation, if true, that such names and addresses are to the grand jury unknown. And parol evidence is always admissible, and sometimes necessary, to establish the defence of prior conviction or acquittal." Commonwealth v. Matthew T. Hendrie, 2 Gray (Mass.) 503; Commonwealth v. Calvin A. Hill, 11 Cush. (Mass.) 137; Commonwealth v. Robert Sherman, 13 Allen (Mass.) 248; Commonwealth v. Thais Stoddard, 9 Allen (Mass.) 280; Commonwealth v. Bridget Thornton, 14 Gray (Mass.) 41; Rieger v. United States (C. C. A.) 107 F. 916.

The allegation of the indictment that a more particular description of the place was not known to the grand jury, in the absence of testimony to the contrary, will be presumed to be a verity. Foerster v. United States (C. C. A.) 116 F. 860; Fall v. United States (C. C. A.) 209 F. 547; Coffin v. United States, 156 U. S. 432, 15 S. Ct. 394, 39 L. Ed. 481; Frisbie v. United States, 157 U. S. 160, 15 S. Ct. 586, 39 L. Ed. 657. According to the test laid down by these cases, the statement of the indictment that the place of possession of the liquor was not more specifically known to the grand jury is presumed to be true, unless the contrary in some way appears from the record. It is urged that, because certain of the witnesses in the trial court were before the grand jury, and these witnesses in their testimony in the trial court indicated in a rather general way where the alleged sale of liquor was made to one Farmer, therefore it must be presumed that the statement made by the grand jury as to the lack of knowledge of the particular place of possession of the liquor was false, and that there is a fatal variance between the allegations in the indictment and the proof. The witnesses, Farmer, Walker, and Van Sickle, testified in a general way, though not specifically, as to the residence of defendant, the place where Farmer testified he had purchased the liquor; but that does not prove that the same testimony as to particularity was before the grand jury. Plaintiff in error did not raise this question in the trial court, where it could have been dealt with in proper manner; but it is for the first time presented in this court. It is evidently an afterthought, and is too late.

However, were the question properly here, we would not be convinced from the record that the statement of the grand jury as to its lack of knowledge of the place of possession of the liquor was necessarily untrue. In Kanner et al. v. United States, 21 F.(2d) 285, 288, the court said: "The courts do not view with favor a claim of variance in the allegation of ignorance on the part of the grand jurors; the variance should appear positively." Also, on page 287: "It is enough to excuse particularity of description of the manner of committing the offense for the grand jurors to allege that they do not know the details." Certainly in the administration of the criminal law it must be presumed, in the absence of evidence to the contrary, that prosecuting attorneys and grand jurors are acting in good faith. Otherwise our criminal procedure would break down. The allegation of this indictment that "a more accurate description of the exact place being to the grand jurors unknown" distinguishes this...