United States v. Hecht
| Decision Date | 01 November 1927 |
| Docket Number | No. 55.,55. |
| Citation | 22 F.2d 264 |
| Parties | UNITED STATES ex rel. MOUQUIN v. HECHT, Marshal. |
| Court | U.S. Court of Appeals — Second Circuit |
Ferris, Shepard, Joyce & McCoy, of New York City (John E. Joyce, of New York City, of counsel), for appellant.
Charles H. Tuttle, U. S. Atty., of New York City (John J. Fogarty, of Yonkers, N. Y., and Ben Herzberg, of New York City, of counsel), for appellee.
Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
L. HAND, Circuit Judge (after stating the facts as above).
It is important to detach the exact question raised by the appeal. The result of the misnomer does not here arise, since, so far as it goes to the validity of the indictment, it must be raised by plea in abatement. 1 Bish. New Cr. Proc. § 677 (2). The error, being in the middle initial, is probably not available anyway. Games v. Dunn, 14 Pet. 322, 327, 10 L. Ed. 476; Cox v. Durham, 128 F. 870, 874 (C. C. A. 8); O'Halloran v. McGuirk, 167 F. 493, 494 (C. C. A. 1). All that is before us is whether the appellant is the person in fact indicted, because, though it was suggested at the bar that the prima facie case made by the indictment had been answered, plainly there is no merit in the contention.
Identity is ordinarily proved prima facie by similarity of name, though that may be answered by showing that there are two persons of the same name. When the names are not alike, other proof is necessary; we may assume that the issue is always open, and that the prosecution has the burden of proof. Strictly, no proof is relevant that the person arrested committed the crime. The jurors do not indict the man who committed the crime, but him described in the evidence before them. They may select another and an innocent man, though the person arrested be guilty. If so, the prosecution fails on the issue of identity, which must be settled before that of guilt becomes relevant. Thus the only person who can be removed is the person whom the jurors mean to indict. Their meaning is to be ascertained, like any other, from the words they use, not from what is in their minds; but the meaning to be attributed to their words may, in case of doubt, be found by looking at the circumstances under which they are uttered. This is a universal canon. Now the only circumstances relevant to the words used are the evidence before them when they find the indictment, for it is from these alone that they get any acquaintance with the subject. They are to be understood,...
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...334 (4th Cooley Ed., 1899, p. 1480). See United States v. Howard, D.C. D.Or., 26 Fed.Cas. page 386, No. 15402; United States ex rel. Mouquin v. Hecht, 2 Cir., 22 F.2d 264, 265. 21 "When a plea in abatement is found in favor of the defendant, the judgment in case of a misdemeanor, is, that h......
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U.S. v. Alessi
...arises. Hence, if it be shown that the witnesses described the person arrested, he is the person indicted." United States ex rel. Mouquin v. Hecht, 22 F.2d 264, 265 (2d Cir. 1927), cert. denied, 276 U.S. 621, 48 S.Ct. 301, 72 L.Ed. 736 The question before us, therefore, is whether appellant......
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...the victim's name need not be included in the indictment (id. at 217, 10 N.E. 690 ). Lastly, in United States ex rel. Mouquin v. Hecht , 22 F.2d 264, 265 (2d Cir.1927), the Second Circuit held that an indictment charging "Louis A. Mouquin" need not be corrected, even though the defendant's ......
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...the victim's name need not be included in the indictment (id. at 217, 10 N.E. 690 ). Lastly, in United States ex rel. Mouquin v. Hecht , 22 F.2d 264, 265 (2d Cir.1927), the Second Circuit held that an indictment charging “Louis A. Mouquin” need not be corrected, even though the defendant's ......