United States v. Strewl

• Decision Date: 17 October 1938
• Docket Number: No. 78.,78.
• Citation: 99 F.2d 474
• Parties: UNITED STATES v. STREWL et al.
• Court: U.S. Court of Appeals — Second Circuit

99 F.2d 474 (1938)

UNITED STATES v. STREWL et al.

No. 78.

Circuit Court of Appeals, Second Circuit.

October 17, 1938.

Joseph G. M. Browne, of Brooklyn, N. Y., for appellants.

Abraham E. Gold, of Binghamton, N. Y., for the United States.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

The first convictions from which the defendants appeal were under an indictment for posting four letters, demanding ransom for a kidnapped person. Section 338a, Title 18, U.S.Code, 18 U.S.C.A. § 338a. This was in five counts: the first, for a conspiracy; the second for posting a letter in Albany, and the third, fourth and fifth, each for posting one in the Southern District of New York; all in 1933. This indictment was found in 1937, more than three years after the letters had been posted, and was therefore barred by the statute of limitations, § 582, Title 18, U.S.Code, 18 U.S.C.A. § 582. However, an earlier indictment in ipsissimis verbis had been found in 1934, naming only three of the seven appellants — Strewl, Oley and Geary — to whom had been added four fictitious names: John Doe, James Doe, Thomas Doe and Richard Doe. Before the 1937 indictment was found the district attorney obtained an ex parte order from the district judge directing him to present his evidence to the grand jury and to obtain another indictment. The petition on which this order passed, alleged that at the time when the first indictment was found, the names of the "other defendants" were not known, and that they could not then be "identified"; but that during January, 1937, the prosecution had discovered ten other persons, who were participants in the crime, and for this reason the 1934 indictment had become "insufficient". All the defendants, new and old, were tried upon the 1937 indictment, and all were convicted on all five counts. The jury was allowed to find as to each except Strewl, that he had been a fugitive from justice until shortly before the indictment was found, and it must be understood that they did so find. Hence as to them the indictment did not need the assistance of §§ 587 and 589 of Title 18, U.S.Code, 18 U.S.C.A. §§ 587, 589, being valid of itself under § 583, Title 18, U.S.Code, 18 U.S.C.A. § 583. Strewl argued that as to him the 1937 indictment was barred by the statute, because § 587 of Title 18, U.S.Code, 18 U.S. C.A. § 587, on which the prosecution relied, did not cover the situation: he asserted that the 1934 indictment had been neither "defective", nor "insufficient", and that the condition upon the operation of § 587 had not therefore been fulfilled. The judge overruled this objection and sentenced all the defendants to prison for two years and fined them $10,000 under the conspiracy count; to twenty years, under the second count; and to twelve years, under each of the third, fourth and fifth counts. These sentences were consecutive, so that the cumulative sentence was 58 years.

The second indictment was also found in 1937 and was for transporting a kidnapped person: it was dismissed as to Strewl. Since, as we have said, the jury was directed to acquit the other defendants, unless they had been fugitives from justice, there is no reason to disturb their convictions under this indictment. Their appeal, so far as concerns their imprisonment, need not be further considered, because they were each sentenced to 77 years, under the kidnapping indictment, to be served concurrently with the sentences under the ransom indictment, and they can therefore have no interest in the reversal of their conviction under the ransom indictment, except as to the fine of $10,000 under the first count. The only points before us are, first, whether the ransom indictment of 1937 was too late, and whether, if so, the convictions under it must be reversed: and second, whether, if not, which, if any, of its counts did not well lie in the Northern District of New York.

Section 587 of Title 18 was enacted on May 10, 1934, after the crimes at bar had been committed and the first ransom indictment had been found, but before the statutory period of limitation had run. Although no case has yet arisen under it, its prime purpose is clear; it is to prevent the failure of a prosecution because an indictment, found in season, proves insufficient in law. Its normal occasion will be after the defendant succeeds on demurrer, or motion to dismiss: if the error can be corrected, it will not discharge the accused. In such cases the correctness of the ruling which "finds" the indictment bad, certainly ought not to be examined again, for in most cases the prosecution cannot appeal, and the scope of the section would be greatly impaired, if it could be used only when the judge who dismissed the indictment was right. Whether the prosecution must await a move by a defendant, or whether, as here, he may move on his own initiative for a finding that the indictment is "defective or insufficient," we need not now decide; but even if he may, the finding of the court cannot be similarly conclusive — at least not in a case like that at bar. The judge found the 1934 indictment "insufficient" for no other reason than that the prosecution had discovered new principals to the crime; as it stood, it was concededly perfect against Strewl, Oley and Geary — not a syllable of it needed change. The consequence of his finding was therefore to allow ten new defendants to be indicted after the statute had run in their favor, or at least would have run had they not been fugitives. Section 587 certainly never meant to forfeit an immunity once gained: its purpose was, not to extend the period of limitation against persons not indicted, but to prevent the escape of those who had been seasonably indicted, but whose indictment was bad because of some corrigible mistake.

We cannot therefore agree that the 1937 indictment was good against any of the defendants, except as they had been fugitives; and as Strewl was not a fugitive, he could invoke the bar. Notwithstanding this, we do not think that his conviction was wrong for the following reasons. The 1934 indictment was not quashed by the indictment of 1937. The order which "found" it "insufficient" did not attempt to dismiss it; and although a second indictment is often said to "supersede" the first, it does not dispose of it without an express quashal. It is true that if the defendant has pleaded to the first indictment, the court will ordinarily quash it to insure his protection from double jeopardy (United States v. Maloney, Fed.Cas. No. 15,713a); but it does not here appear that Strewl had ever pleaded to the first indictment, and if he had, it would make no difference, because in any event an order was necessary. As things were, both indictments stood, and the prosecution was free to elect on which to proceed. Thompson v. United States, 9 Cir., 202 F. 401, 404, 47 L.R.A.,N.S., 206. It selected the wrong indictment, and until very recent times such a mistake would have been fatal; but the amendment of 1919 to § 391 of Title 28, U.S.Code, 28 U.S.C.A. § 391, was amply broad to meet any such error. It directs us to "give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties". The error did...