United States v. Bougie, Crim. A. No. 23290-CD.

• Decision Date: 20 January 1954
• Docket Number: Crim. A. No. 23290-CD.
• Citation: 118 F. Supp. 359
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. BOUGIE.

118 F. Supp. 359

UNITED STATES v. BOUGIE.

Crim. A. No. 23290-CD.

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

January 20, 1954.

Laughlin E. Waters, U. S. Atty. for Southern Dist. of California, Los Angeles, Cal., by Howard R. Harris and Bruce I. Hochman, Asst. U. S. Attys., Los Angeles, Cal., for plaintiff.

Lewis Notrica, Los Angeles, Cal., for defendant.

TOLIN, District Judge.

At the close of the prosecution's evidence, defendant addressed a motion to the Court for entry of judgment of acquittal, as provided in Rule 29, Federal Rules of Criminal Procedure, 18 U.S. C.A., on the ground that the evidence is insufficient to sustain a conviction of the offense charged in the indictment.

The body of the indictment reads as follows:

"On or about November 30, 1953, in Los Angeles County, California, within the Central Division of the Southern District of California, defendant Melvin E. Bougie, in a matter within the jurisdiction of a department and agency of the United States, to wit: the United States Post Office, said matter being the application for Christmas Employment with the United States Post Office by said defendant, did knowingly and wilfully falsify, conceal, and cover up a material fact, and did make a false, fictitious and fraudulent statement and representation, as follows on Form C-1, Application for Christmas Employment, in answer to question 14 thereon: `Have you ever been arrested for an offense for which you were fined or sentenced?', said defendant answered on said form, `No'."

It is noted that the customary allegation that the statement was false in certain particulars has been omitted and there is no allegation from which a reader of the indictment can determine wherein the falsity of the alleged statement resides. All that is alleged is that the quoted statement is false but in what particular cannot be determined from the indictment. It is a fundamental rule of pleading falsity that the indictment state the particulars constituting the falsity. The following cases, although not involving misstatements in exactly the way they are allegedly present here, demonstrate the necessity of pleading more than mere conclusion. Facts which lead to the conclusion must be pleaded. United States v. Williams, 5 Cir., 203 F. 2d 572; United States v. Schneiderman, D.C., 102 F.Supp. 87; United States v. John Reardon & Sons Co., C.C., 191 F. 454. Thus, there is an error of substance in the indictment before the Court. Whether the indictment is sufficient for basic jurisdictional purposes leaving the defendant to require a bill of particulars, has not been presented; and as the defective indictment has not been attacked, the Court proceeds to the point which counsel have urged, i. e., the sufficiency of the evidence. It is readily apparent that unless the defendant had been arrested for an offense for which he was fined or sentenced, the answer "No", which he admittedly made, was a true answer. To prove that defendant had been convicted of such an offense, the Government introduced and, on this element of its case, relies entirely upon a properly authenticated record of the Superior Court of the State of California. It contains a document designated "Judgment" which recites that defendant be punished by imprisonment in the County Jail for the term of one year. A second count is dismissed and then appears a paragraph which reads:

"It is also ordered that execution of sentence be suspended and defendant granted probation, one condition being that defend

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