United States v. Chunn

• Decision Date: 02 June 1965
• Docket Number: No. 9483.,9483.
• Parties: UNITED STATES of America, Appellee, v. Mark Harding CHUNN, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

347 F.2d 717 (1965)

UNITED STATES of America, Appellee, v. Mark Harding CHUNN, Appellant.

No. 9483.

United States Court of Appeals Fourth Circuit.

Argued September 25, 1964.

Decided June 2, 1965.

Ann Llewellyn McKenzie, Concord, N. C. (Clement Manly Llewellyn, and Llewellyn, McKenzie & Llewellyn, Concord, N. C., on brief) for appellant.

William H. Murdock, U. S. Atty. (Roy G. Hall, Jr., Asst. U. S. Atty., on brief) for appellee.

Before SOBELOFF, Chief Judge, BOREMAN, Circuit Judge, and SIMONS, District Judge.

SIMONS, District Judge:

Appellants, Lee Vainderbilt Bill Pruitt and Mark Harding Chunn, together with co-defendants Baxter Cleve Pruitt and Glinn Edward Payne, were indicted,¹ in the Salisbury Division of the Middle District of North Carolina, for assault with a deadly weapon upon one Charles Boler, Jr., an undercover agent, while assisting officers of the Alcohol and Tobacco Tax Unit of the Internal Revenue Service in the performance of their official duties, in violation of 18 U.S.C. § 111.²

Upon arraignment in the District Court on April 20, 1964,³ Appellants Lee Pruitt, Mark Harding Chunn, and the other co-defendant Glinn Edward Payne entered pleas of not guilty; the trial of defendant Baxter Cleve Pruitt was continued beyond the term, he being confined at that time in a state mental institution at Goldsboro, North Carolina. After motions to quash assault indictment and to dismiss were denied, Pruitt, Chunn and Payne waived right to trial by jury, and were tried and convicted by Judge Stanley without a jury on said charge.

Timely motions for directed verdicts of acquittal were made and denied, and defendants sentenced as follows: 1 Appellant Pruitt was sentenced to ten years' imprisonment on assault charge, to run concurrently with his sentences for violation of the Internal Revenue Laws;⁴ 2 Appellant Chunn was sentenced to imprisonment for three years on assault charge; and 3 defendant Payne had imposition of sentence suspended, and he was placed on probation for a period of five years.

After motions in arrest of judgment on behalf of Pruitt and Chunn were denied, they prosecuted this appeal on the assault charge conviction. No appeal was taken on behalf of Payne.

Questions raised by the appeal are: 1 Was indictment so fatally defective that it should have been dismissed or quashed by district court?; and 2 Is there sufficient evidence to sustain convictions of appellants?

We hold that the appeal must be dismissed and convictions affirmed.

In proclaiming that the indictment was fatally defective,⁵ appellants contend that: a it does not allege facts necessary to constitute the offense, inasmuch as the essence of the crime is the interference with, or assault upon, a federal officer engaged in his official duties, or any person assisting him in the execution of same; and that the indictment here alleges that Boler was engaged in his own official duties, and that as a civilian he had no official duties; b indictment should have alleged knowledge or scienter on part of appellants that at time of assault Boler was engaged in assisting federal officers in the performance of their official duties; and c the use of the deadly weapon was improperly alleged, in that the allegations of the indictment failed to show sufficiently in what manner it was used in connection with the assault.

We are unable to see merit in any of these contentions.

Subject indictment was substantially in the words of the statute,⁶ and this court has repeatedly held that an indictment is adequate, if it substantially follows the language of the statute, or words of similar import; United States v. Martell, 335 F.2d 764 4th Cir. 1964; Finn v. United States, 256 F.2d 304 4th Cir. 1958; Wheatley v. United States, 159 F.2d 599 4th Cir. 1946.

In the early years of our criminal jurisprudence, courts generally required strict compliance with the rules of pleading, frequently holding indictments fatally defective for very minor defects, technicalities or omissions. The modern trend has been toward a more liberal, reasonable and realistic view, as is embodied in Rule 7 of Federal Rules of Criminal Procedure, 18 U.S.C., which requires that "the indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged."

The Supreme Court has consistently enunciated the modern day requirements of adequacy and sufficiency of indictments and informations. In United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 1922, the Court said:

"It is enough to sustain an indictment that the offense be described with sufficient clearness to show a violation of law, and to enable the accused to know the nature and cause of the accusation and to plead the judgment, if one be rendered, in bar of further prosecution for the same offense. If the offense be a statutory one, and intent or knowledge is not made an element of it, the indictment need not charge such knowledge or intent."⁷

Mr. Justice Sutherland, in Hagner v. United States, 285 U.S. 427, at page 431, 52 S.Ct. 417, at page 419, 76 L.Ed. 861 1932 asserted:

"The rigor of old common-law rules of criminal pleading has yielded, in modern practice, to the general principle that formal defects, not prejudicial, will be disregarded. The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, `and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.\'" Citations omitted.

This court is in full accord with the modern practice of liberal interpretation and construction of criminal pleadings, so long as the indictment states all of the necessary elements constituting the offense in the statute, adequately apprises defendant of charge against him so he may prepare his defense, and is specific and definite enough to protect him against double jeopardy. Finn v. United States, supra.

In considering the indictment here in the light of the foregoing principles, we are firmly convinced that appellants' contention that the indictment fails to state a criminal offense under the applicable statute cannot be sustained. All essential elements of the offense condemned by the statute are embraced in the indictment. It plainly, concisely and definitely alleges that, on or about February 27, 1964, the four named defendants violated 18 U.S.C. § 111 by assaulting, resisting, opposing, impeding and interfering with Charles Boler, Jr., a person assisting Robert G. Martin and Charles H. Smith, agents and employees of the Alcohol and Tobacco Tax, Internal Revenue Service, United States Treasury Department, in the execution of their official duties, by using a deadly weapon small caliber rifle, and by beating, striking, whipping and stomping the said Charles Boler, Jr. The record completely supports the District Judge's finding that Boler, at the time of the assault was a person assisting⁸ agents of the internal revenue service and entitled to the protection afforded by 18 U.S.C. § 1114.

Appellants further contend that the phrase in the last sentence of the indictment, which describes Boler as having been engaged in the performance of "his official duties" alleges that Boler was engaged in his own official duties, rather than that he was assisting a federal officer in his the federal officer's duties, that in fact Boler was not a federal employee and thus had no official duties.

We do not consider the inclusion of this assertion in the indictment to be of any great import. Regardless of whether Boler, as an employee of the State of North Carolina who was on loan at the time of the assault to the Alcohol and Tobacco Tax Unit of the Internal Revenue Service by agreement of the two agencies, had any official duties is immaterial,⁹ since he was in fact assisting federal agents on said occasion in the performance of their official duties. Thus, the indictment is sufficient without this phrase, and we consider such statement to be surplusage which may be ignored as a useless, innocuous averment. See Ford v. United States, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 1927; Bary v. United States, 292 F.2d 53 10th Cir. 1961; United States v. Vazquez, 319 F.2d 381 3rd Cir. 1963. Moreover, it is obvious that the District Judge disregarded this phrase in his consideration and determination of the case.¹⁰ Neither is there any assertion or showing that appellants were misled or otherwise prejudiced by such surplus allegation; nor was there a motion to strike such portion from the indictment.

Neither can we agree with appellants' contention that the indictment for violation of 18 U.S.C. § 111 was fatally defective because it failed to allege knowledge or scienter on part of defendants that the person assaulted, at the time of the commission of the alleged crime, was either an agent or officer of the United States "while engaged in or on account of the performance of his official duties",¹¹ or a person assisting such agent or officer in the execution of his duties.¹²

Concededly, there is a wide variance and lack of unanimity among the decisions as to whether scienter should be alleged and/or proved.¹³ However, as we read subject indictment in its entirety, appellants are fairly charged therein with assaulting Boler while he was assisting federal officers in the performance of their official duties and on that account alone. Nothing appears in the indictment that could reasonably be interpreted as charging that appellants assaulted Boler for any other reason. It would logically follow that since appellants are charged with assaulting Boler on account of his assisting federal agents in the discharge of their official duties, ...