United States v. Wernecke

• Decision Date: 02 December 1943
• Docket Number: No. 8329.,8329.
• Citation: 138 F.2d 561
• Parties: UNITED STATES v. WERNECKE.
• Court: U.S. Court of Appeals — Seventh Circuit

138 F.2d 561 (1943)

UNITED STATES v. WERNECKE.

No. 8329.

Circuit Court of Appeals, Seventh Circuit.

November 5, 1943.

Rehearing Denied December 2, 1943.

Theodore W. Miller and Ode L. Rankin, both of Chicago, Ill., for appellant.

J. Albert Woll and Richard G. Finn, U. S. Attys., and John Owen, Asst. U. S. Atty., all of Chicago, Ill., for appellee.

Before SPARKS and MINTON, Circuit Judges, and LINDLEY, District Judge.

MINTON, Circuit Judge.

The defendant-appellant registered under and was subject to the Selective Training and Service Act of 1940. In the case at bar, he was charged in two counts with the violation of Section 311, 50 U.S.C.A. Appendix.¹

In the first count it was charged as follows: "* * * did unlawfully, knowingly, wilfully, and feloniously fail and neglect to perform a certain duty which he then and there was required to perform by the provisions of the Selective Training and Service Act of 1940, as amended, and the rules and regulations thereunder, which said duty the said defendant did then and there unlawfully, knowingly, wilfully, and feloniously fail and neglect to perform was the duty of making true and correct answers to the questions contained in the questionnaire executed by the said defendant on May 12, 1941 * * *"

The other count charged as follows: "* * * did unlawfully, knowingly, wilfully and feloniously evade and attempt to evade service in the land or naval forces by falsely assuming and pretending to become a minister of religion * * *"

No motion to quash or for a bill of particulars or a demurrer was filed by the defendant. At the conclusion of the Government's evidence, the defendant filed a motion for a directed verdict and also motions to strike each count of the indictment, but gave no reasons for the motions to strike. The District Court overruled all three motions, and the jury returned a verdict of guilty. From judgment upon such verdict, the defendant has appealed.

The first error urged is that each count of the indictment is bad. As to the first count, counsel for the defendant admits that it charges the offense in the terms of the statute and that such an indictment may be good unless an element of the offense is charged by the use of generic terms, such as the word "duty" in the first count, in which case the indictment must set forth what the "duty" was. We think the first count sufficiently charges the offense in the terms of the statute and sufficiently alleges what that duty was. The duty was to make true answers to the questions in a questionnaire executed by the defendant. If he had any doubt as to the matter, he should have asked for a bill of particulars. This is not a case where the indictment fails to set forth an essential element. It is a case where the element is not set forth with sufficient particularity. The defendant, without challenging the sufficiency of the indictment which charged all the elements of the offense and without requesting a bill of particulars if the charge in general, broad terms were not sufficient, and without any showing that he had been misled, surprised, or prejudiced by the form of the indictment, went to trial and had his chance with the jury. Under such circumstances, it is our duty to sustain the indictment. 18 U.S.C.A. § 556; Lamar v. United States, 241 U.S. 103, 116, 36 S.Ct. 535, 60 L.Ed. 912; Dunbar v. United States, 156 U.S. 185, 192, 15 S.Ct. 325, 39 L.Ed. 390; Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 480, 40 L.Ed. 606.

What we have said as to the sufficiency of the first count applies to the other count.

At the time the defendant was arrested, the arresting officers entered his home and searched the premises, and took certain envelopes and papers that had been furnished him for use in a correspondence course of study for the ministry. On the trial, these papers were offered in evidence, and objection was made that they were inadmissible because obtained by illegal search and seizure. It would be sufficient to answer this objection to say that the court will not at the trial form and pursue a collateral issue as to the legality of the possession of the defendant's papers by the Government. If the papers were otherwise admissible, the court will not inquire at the trial for the first time into the legality of the possession by the Government. The validity of the seizure could have been tested in a motion made before the trial for the return of the papers. No such motion was made. The papers were otherwise admissible, and there was no legal basis to object to their introduction. Adams v. People of State of New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575; Rice v. United States, 251 F. 778.

Furthermore, the papers alleged to have been illegally seized and introduced in evidence were introduced to prove the defendant had used only one set of the papers to report only one lesson completed and sent in; and the defendant testified to the facts sought to be proved by the evidence introduced and claimed to have been seized illegally. If the seizure had been originally improper, the defendant by his testimony made the seizure harmless. Libera v. United States, 9 Cir., 299 F. 300, 301; Temperani v. United States, 9 Cir., 299 F. 365; White v. United States, 9 Cir., 16 F.2d 870, 872.

The court instructed the jury as follows: "If you believe from the evidence that any witness in this case has knowingly and wilfully testified falsely on this trial to any matter material to the issues in this case, then you are at liberty to disregard the entire testimony of such witness, except in so far as it has been corroborated, if you find it has been corroborated, by other credible evidence, or by facts and circumstances proven on the trial."

To give this instruction was error, the defendant says, because it left to the jury the question of determining for itself what evidence was material, citing People v. Wells, 380 Ill. 347, 44 N.E.2d 32, 142 A.L. R. 1262; and People v. Flynn, 378 Ill. 351, 38 N.E.2d 49. These cases do hold that such an instruction standing alone may constitute error. But the case cited of People v. Wells, supra, recognizes that if other instructions which define the material issues in the case are given as part of the same charge, the giving of the instruction herein complained of is not error. The trial court in the instant case instructed at length defining the material issues. The instruction complained of did not stand alone, but was supplemented by ample other instructions that clearly defined what the material issues in the case were. This supplied the fault pointed out by the defendant; and the giving of the instruction under the circumstances was not error. Henry v. United States, 50 App.D.C. 366, 374, 273 F. 330, 338; Mason v. United States, 5 Cir., 95 F.2d 612.

As the judge was excusing the jury, he stated: "Ladies and gentlemen, counsel has made a motion here for a directed verdict for the defendant. I am going to deny the motion and refuse the instruction."

We do not think this statement was prejudicial. Henry v. United States, 50 App.D.C. 366, 372, 273 F. 330, 336. Even if the statement were prejudicial standing alone, it was made harmless by the court's instructions that fully advised the jury to disregard any expressions of opinion the court might have made, disclaiming any intention to give expression to any opinion, and further...