United States v. Thomas, 23975.

• Decision Date: 26 April 1971
• Docket Number: No. 23975.,23975.
• Citation: 444 F.2d 919
• Parties: UNITED STATES of America v. Roy L. THOMAS, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

444 F.2d 919 (1971)

UNITED STATES of America v. Roy L. THOMAS, Jr., Appellant.

No. 23975.

United States Court of Appeals, District of Columbia Circuit.

Argued December 18, 1970.

Decided April 26, 1971.

Mr. David C. Venable, Washington, D. C. (appointed by this court) for appellant.

Mr. John O'B. Clarke, Jr., Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and David C. Woll, Asst. U. S. Attys., were on the brief, for appellee.

Before WRIGHT and MacKINNON, Circuit Judges, and SMITH,^* Chief Judge, U. S. District Court for the District of Montana.

MacKINNON, Circuit Judge:

This appeal arises from a conviction of statutory burglary (first degree) under the laws of the District of Columbia. The principal issue raised involves the specific intent required for that offense. Appellant contends that the specific intent required by the statute was not properly alleged in the indictment, proved by the evidence or covered by the court's instructions to the jury. We do not reach the two latter issues since we find the indictment to be defective to charge the offense of first degree burglary.¹ However, we find that the indictment did charge unlawful entry and that the evidence supports a conviction thereof. We therefore authorize the trial court, if the Government does not object, to enter judgment accordingly and to impose a proper sentence.

I.

The questioned indictment provides:

On or about April 5, 1969, within the District of Columbia, Roy L. Thomas, Jr. entered the dwelling of Vivian M. Medley while Threasa sic A. Medley, Carolyn I. Medley and Vivian M. Medley were present in said dwelling, with intent to commit a criminal offense therein. (Emphasis added.)

The grand jury charged that the acts alleged in the indictment were in violation of D.C.Code § 22-1801(a) (Supp. III, 1970) (81 Stat. 736), which provides:

Whoever shall, either in the nighttime or in the daytime, break and enter, or enter without breaking, any dwelling, or room used as a sleeping apartment in any building, with intent to break and carry away any part thereof, or any fixture or other thing attached to or connected thereto or to commit any criminal offense, shall, if any person is in any part of such dwelling or sleeping apartment at the time of such breaking and entering, or entering without breaking, be guilty of burglary in the first degree. Burglary in the first degree shall be punished by imprisonment for not less than five years nor more than thirty years. (Emphasis added.)

Against the backdrop of such statute, appellant contends that the indictment does not sufficiently charge the crime of first degree burglary. Specifically, appellant contends that since the indictment does not identify the particular offense he allegedly intended to commit when he entered the dwelling, it does not charge him with having the specific intent which forms an essential element of the crime of burglary under the D.C.Code. Therefore, his argument concludes, (1) he was not fairly apprised of the evidence he would have to meet at trial; and (2) since there was no way of knowing the specific intent the grand jury had found to exist in returning the indictment, there was no way of knowing whether he was being tried for the offense for which he was indicted; and (3) because of the lack of specificity in the allegation of intent, the crime with which he was charged was not sufficiently identified to afford him protection against being placed in double jeopardy.

The statutory crime of burglary, as presently defined in the District of Columbia, has several variations from the old common-law offense² and, insofar as is here material, requires that entry of the dwelling be made "with intent * * * to commit any criminal offense." The indictment which charges appellant with burglary is drawn in the precise language of the statute and thus does not specify the particular offense he allegedly intended to commit. While it is ordinarily proper for an indictment to be drawn in the language of the applicable statute, the case is otherwise when the statute does not fully contain each element of the offense.³

The prohibition contained in the District's burglary statute against entry of a dwelling with an "intent * * * to commit a criminal offense" is a proscription on entry of a dwelling with any one or more of a certain category of specific intents and not merely a proscription against entry with a generally evil or criminal intent. The statute contains only the genus of proscribed intent. However, as was stated in the oft cited case of United States v. Cruikshank,

it is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species, — it must descend to particulars.⁴

An indictment drawn simply in the language of the District's burglary statute thus does not allege with sufficient particularity the offense with which appellant was charged. As so drawn, it describes the offense only in impermissibly broad and categorical terms. In order to achieve the requisite degree of precision, we hold, in accordance with the great weight of authority,⁵ that the indictment must state the particular offense the accused intended to commit upon entry into the dwelling.⁶

Under the circumstances of this case, the principal harm suffered by the appellant because of the lack of precision in the indictment results from his inability to discern the specific underlying offense, if any, that the grand jury had in mind when it returned the indictment. We recognize that ordinarily under the present modernized rules of federal criminal procedure an indictment drawn in the language of a statute, but which fails to allege a particular fact which the accused is entitled to know, can be cured of such defect through the use of a bill of particulars.⁷ This is not true, however, when the omitted fact is a material element of the offense.⁸ In such circumstances, to permit the omission to be cured by a bill of particulars would be to allow the grand jury to indict with one crime in mind and to allow the U.S. Attorney to prosecute by producing evidence of a different crime.⁹ Such imprecision in a grand jury indictment cannot be permitted.¹⁰ To do so would make it possible for the U.S. Attorney to usurp the function of the grand jury by supplying an essential element of the crime and, in many cases, would violate due process by failing to give the accused fair notice of the charge he must meet.¹¹

The above considerations are of particular importance in burglary prosecutions because the actual proof at trial involves evidence of at least two crimes, the unlawful entry and the intent to commit the ulterior crime. In addition, the specific intent is ordinarily the most important element of the crime because it may be the most difficult to prove. When the ulterior crime can range from crimes like murder, assault and rape to arson and larceny there is a particular need for specificity because of the wide variations in the elements of such ulterior offenses. However, the ulterior crime need not be alleged as fully as would be necessary if the ulterior crime were itself the offense charged. It is ordinarily sufficient to allege that offense in general terms, as entry with intent to steal, assault, rob, rape, murder, commit arson, larceny, etc.¹²

An example of proper pleading is the indictment used in Washington v. United States, 105 U.S.App.D.C. 58, 61, 263 F.2d 742, 745, cert. denied, 359 U.S. 1002, 79 S.Ct. 1142, 3 L.Ed.2d 1032 (1959) where a housebreaking indictment returned by the grand jury provided:

On or about April 23, 1957, within the District of Columbia, Artis S. Washington entered the building of William J. Jones with intent to steal property of another.

We are not advised as to why this form of indictment was not used in the instant case, for it simply and adequately charges the specific intent required in the crime of burglary, or housebreaking as it was then known.¹³ We are certain that no great difficulty will be occasioned hereafter by specifying the specific intent required for burglary in substantially the same manner.

In so saying, we are not unmindful of the difficulties which arise in burglary complaints where the ulterior crime may not be consummated and the pleader is required to designate the offense which the accused intended to commit upon entry into the building. In such cases, where the evidence indicates that the accused may have intended to commit several offenses, the indictment may allege the intent to commit one or more ulterior crimes. The jury may then be instructed that the accused may be found to have possessed the necessary intent for burglary if they find beyond a reasonable doubt that he had the intent to commit one or more of the specified ulterior offenses. In addition, in cases such as the one at bar which involve breaking and entering of a dwelling in the nighttime, where the evidence of the ulterior crime may be indefinite, the indictment may allege an intent to commit the crime of larceny and the jury may be instructed that such circumstances, if not explained to their satisfaction, may furnish the basis for an inference that the entry was made with the intent to commit larceny, but such conclusion is not required.¹⁴ The longstanding rationale for such inference was aptly explained by the Supreme Court of Iowa in State v. Woodruff, 208 Iowa 236, 225 N.W. 254, 255 (1929):

"Some presumptions are to be indulged in against one who enters a building unbidden, at a late hour of the night, else the burglar caught without booty might escape the penalties of the law. `The love of gain, the desire to get and have, is so wide a principle of human nature, that, other motives being eliminated, that

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