United States v. Aviles

• Decision Date: 27 April 1915
• Citation: 222 F. 474
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. AVILES et al.

222 F. 474

UNITED STATES v. AVILES et al.

United States District Court, S.D. California, Southern Division.

April 27, 1915

Albert Schoonover, U.S. Atty., and M. G. Gallaher, Asst. U.S. Atty both of Los Angeles, Cal., for the United States.

Oscar Lawler and Hunsaker & Britt, all of Los Angeles, Cal., J. C Cannon, of San Diego, Cal., and Rufus V. Bowden, William Barnhill, and Gibson, Dunn & Crutcher, all of Los Angeles Cal., for defendants.

TRIPPET District Judge.

This is an indictment for a conspiracy. Certain defendants have moved the court to quash the indictment, and to require the United States attorney to give them a list of the witnesses examined before the grand jury, when the grand jury had under consideration the question of presenting the indictment.

The motion to quash has raised the question that the indictment does not sufficiently charge the venue. The allegation concerning the formation of the conspiracy is simply that it was formed within the jurisdiction of the court, without specifying any particular place or county therein in which the conspiracy was formed. It is not necessary for the court to pass upon the question as to whether such a charge in the indictment sufficiently alleges the venue, for, in a conspiracy case, it is sufficient to charge that some of the overt acts occurred at a place within the jurisdiction of the court. Brown v. Elliott, 225 U.S. 392, 401, 32 Sup.Ct. 812, 56 L.Ed. 1136. In this case several overt acts are charged to have occurred at places within the jurisdiction of the court.

The second proposition is that the indictment is too uncertain. The sixth amendment to the Constitution provides that the defendant shall be informed of the nature and cause of the accusation. The courts have established two principles by which these questions may be decided. Rosen v. U.S., 161 U.S. 30, 16 Sup.Ct. 434, 480, 40 L.Ed. 606. These principles are that the indictment must be sufficiently certain to enable the defendant to plead jeopardy in a subsequent indictment. There is no argument that this indictment does not comply with that principle, and there is no room for argument in that respect.

The second principle is that the indictment must be sufficiently certain as a pleading, to enable the defendant to make his defense. In this regard it is pointed out that the indictment charges that the date of the formation of the conspiracy and the dates of the overt acts are alleged to have been 'on or about' a certain day. It is claimed that this is sufficiently uncertain to make the indictment bad, for two reasons:

First, it is claimed that the indictment does not show that the crime is not barred by the statute of limitations. This, however, cannot be maintained, because the charge in the indictment is certain as to the year. The phrase 'on or about' does not qualify the allegation that the conspiracy was formed in 1914. There is an authority that a similar expression does not qualify the month, but only qualifies the particular day of the month. U.S. v. McKinley et al. (C.C.) 127 F. 169.

It is well established that an allegation of a date in an indictment does not confine the prosecution to the proof of that particular date; therefore a certain date is not a necessary allegation in an indictment. Section 1025, Rev. St. U.S. (Comp. St. 1913, Sec. 1691), provides that the indictment shall not be held insufficient in matter of form only which shall not tend to the prejudice of the defendant. Under similar statutes, in some states, it has been held that an indictment charging on or before a particular date is sufficient. Many courts have held that the date is a matter of form only. The Supreme Court of the United States has held that an indictment which alleged the day of the month as follows: 'on the . . . day of April, 1906,' was a sufficient allegation of the date. Ledbetter v. United States, 170 U.S. 606, 18 Sup.Ct. 774, 42 L.Ed. 1162. For the reasons stated, therefore, the court thinks that the indictment is sufficient on motion to quash.

As to the motion to require the United States attorney to furnish to the defendants a list of the witnesses examined by the grand jury, I will say the Constitution provides (article 6 of amendments) that the defendant shall be confronted with the witnesses against him. This simply means that the defendant is entitled to attend the trial and to hear the witnesses testify....