Thompson v. United States

• Decision Date: 03 February 1913
• Docket Number: 2,136.
• Citation: 202 F. 401
• Parties: THOMPSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

202 F. 401

THOMPSON v. UNITED STATES.

No. 2,136.

United States Court of Appeals, Ninth Circuit.

February 3, 1913

[Copyrighted Material Omitted]

Fred H Thompson, of Los Angeles, Cal., in pro. per., and Paul W Schenck, of Los Angeles, Cal., for plaintiff in error.

A. I. McCormick, U.S. Atty., and Edward A. Regan and Harry R. Archbald, Asst. U.S. Attys., all of Los Angeles, Cal.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge.

The plaintiff in error, an attorney at law practicing at Los Angeles, Cal., defended Orlando F. Altorre in a case in which Altorre was indicted for stealing $15,000 in currency from the mails of the United States. Altorre was employed in the registry division of the post office at Los Angeles. In June, 1909, he stole from the mail two packages of currency which had come into his possession as registry clerk, one containing $10,000 and the other $5,000. Altorre was convicted on the indictment for stealing from the mails, also on an indictment for perjury, and was sentenced to serve a term of two years in Leavenworth and pay a fine of $1. In July, 1910, the plaintiff in error was indicted by the federal grand jury at Los Angeles, indictment No. 268, charging him with having unlawfully received and concealed, and assisted Altorre in concealing, the money above referred to. Shortly afterwards, in order to avoid certain objections which had been made to the indictment, a second indictment, No. 295, was returned against the plaintiff in error and his wife, and on that indictment he was convicted.

Error is assigned to the refusal of the trial court to quash indictment No. 295. The motion is based on two grounds, the first of which is that prior to finding and returning the same the grand jury had found and presented indictment No. 268 against the plaintiff in error and Etta M. Thompson, his wife, accusing them and each of them with the identical offense embraced in indictment No. 295, and that the defendants in indictment No. 268 had been arraigned and had entered their pleas, and the trial had been set for a day certain.

The contention is that under the law of California, which it is said became the rule of practice for the federal courts in that state, a grand jury which has once indicted a defendant is disqualified to bring in a second indictment against him charging him with the same offense. Assuming for the purpose of this discussion that section 800 of the Revised Statutes (U.S. Comp. St. 1901, p. 623), which provides that 'jurors to serve in federal courts shall have the same qualifications as jurors of the highest courts of law in the state where they are to serve,' is applicable to the case, we turn to the statutes and decisions of California for light upon the question whether the grand jury was disqualified to bring in the second indictment. Counsel for plaintiff in error cite three decisions-- People v. Hanstead, 135 Cal. 149, 67 P. 763; People v. Bright, 157 Cal. 663, 109 P. 33; People v. Landis, 139 Cal. 426, 73 P. 153. The two cases last named are not in point, but People v. Hanstead holds distinctly in accordance with the contention of the plaintiff in error. That was a decision by a department of the Supreme Court, and it runs directly counter to a former decision of that court in banc, reported in People v. Northey, 77 Cal. 618, 19 P. 865, 20 P. 129. The opinion in the Hanstead Case takes no note of the Northey Case, and the court would seem to have overlooked the decision in that case. The practice in the state of California, therefore, cannot be said to be settled in favor of the proposition for which the plaintiff in error contends. It is to be observed that all of the decisions of the Supreme Court of California above cited were rendered prior to the change in section 1008 of the Penal Code, which was made in 1905 (St. 1905, p. 773). That section prior to the amendment provided that, if a demurrer were sustained to an indictment, it was a bar to another prosecution for the same offense, unless the court being of the opinion that the objection to which the demurrer was allowed might be avoided in a new indictment 'directs the case to be submitted to another grand jury. ' The section as amended substitutes for the last clause the following: 'Directs the case to be submitted to the same or another grand jury'-- thereby declaring the law of the state to be that a grand jury which had once found an indictment against a defendant was not disqualified to find a second indictment against him upon the same facts, a wise provision of law, and we may well wonder why it should ever have been held otherwise, as no substantial reason is apparent why a grand jury after having once found an indictment which is discovered to be defective in form may not, upon the information which it has acquired, and with the same conviction, based upon that information, that the defendant should be brought to trial, present a second indictment for the same offense.

The second ground of the motion to quash, which was that there were pending two indictments against the defendant for the same offense, is not sustainable. It is not supported by any citation of authority, probably for the reason that none could be found. In O'Meara v. State, 17 Ohio St. 516, the court, referring to a similar contention, said:

'We know of no such law. The last indictment is as valid as the first. Two indictments for the same offense are often pending at the same time. The state can only proceed upon one of them, but may elect upon which it will proceed.' The same was held in Smith v. Commonwealth, 104 Pa. 339, Commonwealth v. Drew, 3 Cush. (Mass.) 279, Dutton v. State, 5 Ind. 533, and State v. Lambert, 9 Nev. 321.

It is contended that the court erred in overruling the demurrer to the indictment, that the indictment is faulty, in that it fails to charge the intent with which the money was received, or from whom it was concealed, or the name of the owner thereof. The defendant was indicted under section 5470 of the Revised Statutes (U.S. Comp. St. 1901, p. 3693), which provides that:

'Any person who shall buy, receive or conceal, or aid in buying, receiving or concealing * * * any bank note, bank post bill, bill of exchange, etc. * * * knowing any such article or thing to have been stolen or embezzled from the mail or out of any post office * * * shall be punishable,' etc.

The indictment charges that the defendant did willfully, knowingly, unlawfully, and feloniously receive from Altorre the bank notes which were therein described, and states the value thereof, and charges that they had been knowingly, unlawfully, and feloniously stolen and taken and carried away from the mails of the United States in a post office of the United States at Los Angeles by the said Altorre, and that the defendants at the time and place of receiving and concealing, and aiding in concealing said articles, knew the same to have been unlawfully and feloniously stolen, taken, and carried away from the mails of the United States. These allegations clearly import that the concealment by the defendants was criminal, and done with an unlawful intent, and they cover all the elements of the crime which is described in section 5470. The purpose of the statutes (sections 5467-5470 (U.S. Comp. St. 1901, pp. 3691-3693)) is to protect the mails against plundering, pilfering, or other interference or meddling with their contents.

In prosecuting offenders for violation of sections 5467, 5469 and 5470, it is not necessary to allege in the indictment or to prove on the trial all the...