United States v. Waters

• Decision Date: 08 November 1948
• Docket Number: No. 9657.,9657.
• Citation: 175 F.2d 340,84 US App. DC 127
• Parties: UNITED STATES v. WATERS.
• Court: U.S. Court of Appeals — District of Columbia Circuit

84 US App. DC 127, 175 F.2d 340 (1948)

UNITED STATES v. WATERS.

No. 9657.

United States Court of Appeals District of Columbia Circuit.

Argued June 7, 1948.

Decided November 8, 1948.

Mr. John D. Lane, Assistant United States Attorney, with whom Mr. George Morris Fay, United States Attorney, and Mrs. Grace B. Stiles, Assistant United States Attorney, who entered appearances, were on the brief, for appellant. Mr. Sidney S. Sachs, Assistant United States Attorney, also entered an appearance for appellant.

Mr. Henry Lincoln Johnson, Jr., for appellee.

Before STEPHENS, Chief Justice, and EDGERTON and PROCTOR, Associate Justices.

STEPHENS, Chief Justice.

The appellee Samuel F. Waters was indicted in the United States District Court for the District of Columbia under three counts, the first charging assault with a loaded pistol upon one William Sherman, the second assault with intent to kill Sherman, the third that "On or about February 18, 1947, within the District of Columbia, Samuel F. Waters carried a pistol on or about his person." The third count was based upon D.C.Code (Supp. V 1946) § 22 — 3204 reading as follows:

No person shall within the District of Columbia carry either openly or concealed on or about his person, except in his dwelling house or place of business or on other land possessed by him, a pistol, without a license therefor issued as hereinafter provided, or any deadly or dangerous weapon capable of being so concealed.

Waters was tried before a court and jury. At the close of the Government's case several motions for "judgment of acquittal" were made. The terms of those motions are not in the record, but it appears from colloquy between the trial court and counsel as recorded in the transcript of proceedings that some of the motions were based upon alleged insufficiency of the evidence. It appears from the trial court's "Memorandum Granting Motion for Judgment of Acquittal," which is a part of the record, that one of the motions was directed at the sufficiency of the third count of the indictment. The trial court reserved decision on all of the motions and submitted the case to the jury on all three counts. The jury returned a verdict of not guilty on the first two counts and of guilty on the third. Because of the not guilty verdict the trial court did not rule upon the motions attacking the first two counts. But the trial court in respect of the third count granted the "Motion for Judgment of Acquittal" and the defendant was discharged. The Government appealed to this court. Waters moved to dismiss the appeal upon the ground that there is no right of appeal in the Government from a judgment of acquittal.¹ The Government resists the motion to dismiss the appeal. It contends that the action of the court in granting the "Motion for Judgment of Acquittal" was in reality an arrest of judgment. We think this contention is correct and that the motion to dismiss the appeal must be denied.

Under Rule 29(a), Federal Rules of Criminal Procedure, 18 U.S.C.A., a judgment of acquittal is to be entered "if the evidence is insufficient to sustain a conviction" of the offense charged. Under Rule 34 "The court shall arrest judgment if the indictment . . . does not charge an offense . . .." As stated above the "Motion for Judgment of Acquittal" lodged against the third count of the indictment attacked the sufficiency thereof and it is that motion which was granted. We must be guided in determining the question of appealability of the trial court's action not by the name the court gave it but by what in legal effect it actually was. It actually was an arrest of judgment upon the ground that the indictment did not charge an offense. It follows that the action of the trial court was not non-appealable because it was, as contended by Waters, a "judgment of acquittal."

Since the trial court's action was an arrest of judgment, it remains to consider whether that action was appealable by the Government, and if so to what court.

The Criminal Appeals Act, 18 U.S.C. § 3731 (1948), provides:

An appeal may be taken by and on behalf of the United States from the district courts to a circuit court of appeals or the United States Court of Appeals for the District of Columbia, as the case may be, in all criminal cases, in the following instances:

* * *

From a decision arresting a judgment of conviction except where a direct appeal to the Supreme Court of the United States is provided by this section.

The Act provides also, in prior paragraphs:

An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances:

* * *

From a decision arresting a judgment of conviction for insufficiency of the indictment... where such decision is based upon the invalidity or construction of the statute upon which the indictment ... is founded.

It is apparent from the foregoing that the action of the trial court in the instant case was, as "a decision arresting a judgment of conviction" in a criminal case, appealable to this court unless such decision was for insufficiency of the indictment and was "based upon the invalidity or construction of the statute upon which the indictment . . . is founded." In such event the appeal is to be taken direct to the Supreme Court.

The Supreme Court has held that the provision of the Criminal Appeals Act "which limits the Government's appeal direct to the Supreme Court to those cases where the decision or judgment of the District Court arresting a judgment of conviction for insufficiency of the indictment is `based' upon the invalidity or construction of the statute, should be taken to refer to cases where that determination, and not a wholly independent ground, is the foundation of the judgment. If the judgment is independently based, and in that respect is not open to correction or reversal, we are of the opinion that this Court should not entertain the Government's appeal. . . ." (Italics supplied) United States v. Hastings, 1935, 296 U.S. 188, 194, 56 S.Ct. 218, 80 L.Ed. 148. United States v. Wayne Pump Co., 1942, 317 U.S. 200, 63 S.Ct. 191, 87 L.Ed. 184; United States v. Borden Co., 1939, 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181.

In its "Memorandum Granting Motion for Judgment of Acquittal" the trial court said:

Defendant contends he was improperly convicted because the prosecution failed to allege in the indictment and affirmatively prove that he did not have a license to carry a pistol.

Where a statute defining an offense contains an exception which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately described if the exception is omitted, the indictment must allege facts showing that the accused is not within the exception. United States v. Cook 17 Wall. 168 84 U.S. 168, 21 L.Ed. 538.

The crime of which defendant was convicted is not carrying a pistol, as charged in the indictment, but is carrying a pistol without a license. This is indicated not only by the section defining the offense, but also by the next succeeding section of the Code, which sets forth specifically and in detail those not required to be licensed. In cases of this character decided by State Courts it has been held that the indictment or information...