United States v. Gouled

• Decision Date: 31 August 1918
• Citation: 253 F. 239
• Parties: UNITED STATES v. GOULED et al.
• Court: U.S. District Court — Southern District of New York

253 F. 239

UNITED STATES v. GOULED et al.

United States District Court, S.D. New York.

August 31, 1918

Francis G. Caffey, U.S. Atty., and Joseph A. Burdeau, Asst. U.S Atty., both of New York City.

Martin W. Littleton, of New York City, for defendant Gouled.

Max Steuer, of New York City, for defendant Podell.

HUTCHESON District Judge.

The defendant Felix Gouled has moved for an order for a bill of particulars. The government insisting on the first count only, this opinion is based on that count alone.

'The office of a bill of particulars is to advise the court, and more particularly the defendant, of what facts, more or less in detail, the defendant will be required to meet, and the court will limit the government in its evidence to those facts, so set forth. ' United States v. Adams Express Co. (D.C.) 119 F. 240. When a bill of particulars is once made and served, 'it concludes the rights of all parties to be affected by it, and he who has furnished the bill of particulars under it must be confined to the particulars he has specified as closely and effectually as if they constituted essential allegations in a special declaration. ' Commonwealth v. Giles, 1 Gray (Mass.) 466, cited and approved in Dunlop v. United States, 165 U.S. 486, 17 Sup.Ct. 375, 41 L.Ed. 799. Refusal of bill of particulars rests in the sound discretion of the court. Rosen v. United States, 161 U.S. 29 16 Sup.Ct. 434, 480, 40 L.Ed. 606; Dunlop v. United States supra; Knauer v. United States, 237 F. 13, 150 C.C.A. 210 (C.C.A.).

This being the purpose and scope of the bill prayed for, and the duty and function of the court, it is clear that the motion should only be allowed where the charges of an indictment are so general that they do not advise the defendant of the specific acts of which he is accused, and the court feels that the bill should be furnished him, so that he may properly prepare his defense. Kettenbach v. United States, 202 F. 377, 120 C.C.A. 505. It is equally clear that the bill of particulars should never be granted where its result would be to limit the government unduly, by confining its evidence so narrowly as that it may shut out proper and material evidence of which the government may not now be advised.

Whatever may now be the rule in other courts, or whatever may have been the rule in the courts of the United States, it is certainly the present rule that the trial of a criminal case is not a play of thrust and parry, but is the functioning of the machinery of justice to fairly determine the guilt or innocence of an accused, and only those requirements should be made of prosecution and of defense which fairly and properly, in a reasonable and common-sense way, will produce in a court of justice a full and complete disclosure of the facts upon which guilt or innocence rests, with as little as possible of the technicalities and the dry rules which hamper and impede the course of justice. As was well said by Mr. Justice Brown in Evans v. United States, 153 U.S. 584, 14 Sup.Ct. 934, 38 L.Ed. 830:

'While the rules of criminal pleading require that the accused shall be fully apprised of the charge made against him, it should, after all, be borne in mind that the object of criminal proceedings is to convict the guilty, as well as to shield the innocent, and no impracticable standards of particularity should be set up, whereby the government may be entrapped into making allegations which it would be impossible to prove.'

Again, in Mark Yick Hee v. United States, 223 F. 733, 139 C.C.A. 262 (C.C.A. 2d Circ.), Rogers, J., speaking for the court, says:

'Under the Constitution of the United States a person accused of a criminal offense is entitled to be informed of the nature and cause of the accusation against him. There must therefore be such particularity of allegation in an indictment as will enable the accused to understand the charge which is preferred and to prepare his defense. But the principle is well established that, while all the elements of the crime charged, or facts necessary to make out the offense, must be fully and clearly set out, it is not necessary to allege matters in the nature of evidence, or to set out the means by which the crime is accomplished, unless the act is one which may be criminal or not according to the circumstances under which it is done.' In what has been said or will be said there is not the slightest intention to avoid the force of the

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