Vedin v. United States

• Decision Date: 05 May 1919
• Docket Number: 3211.
• Citation: 257 F. 550
• Parties: VEDIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

257 F. 550

VEDIN v. UNITED STATES.

No. 3211.

United States Court of Appeals, Ninth Circuit.

May 5, 1919

Rehearing Denied June 2, 1919.

Leroy Tozier, of Fairbanks, Alaska (De Journel & De Journel, of San Francisco, Cal., of counsel), for plaintiff in error.

Annette Abbott Adams, U.S. Atty., of San Francisco, Cal., and R. F Roth, U.S. Atty., and Harry E. Pratt, Asst. U.S. Atty., both of Fairbanks, Alaska.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge.

The plaintiff in error was convicted on three counts of an indictment which charged him with making three several false affidavits of annual assessment work upon three several association placer mining claims for the year 1916. The indictment in each count charged violation of chapter 10 of the Session Laws of Alaska of the year 1915. A demurrer was interposed to the indictment on the ground that the Session Laws so referred to are unconstitutional and void. The demurrer was overruled. The plaintiff in error, before the introduction of any evidence demanded that the prosecution elect, and inform him, under what law it was prosecuting the defendant in the trial of the case, which motion was renewed at the close of the government's case. The motions were denied. These rulings are assigned as error.

We need not inquire into the question of the constitutionality of the Session Laws of 1915, for the facts charged in the indictment were sufficient to constitute an offense under section 162 of the Compiled Laws of Alaska of 1913, for the statute on which an indictment is found is determinable, as a matter of law from the facts charged, and they may bring the offense charged within an existing statute, although the same is not mentioned, and the indictment is brought under another statute. Williams v. United States, 168 U.S. 382, 18 Sup.Ct. 92, 42 L.Ed. 509; United States v. Nixon, 235 U.S. 231, 35 Sup.Ct. 49, 59 L.Ed. 207; Wechsler v. United States, 158 F. 579, 86 C.C.A. 37; United States v. Sandefuhr (D.C.) 145 F. 49; United States v. Wood (D.C.) 168 F. 438; Ex parte King (D.C.) 200 F. 622; Commonwealth v. Peto, 136 Mass. 155.

Nor do we find error in the denial of the motions to elect. Undoubtedly the defendant in a criminal action is entitled to know the statute under which he is being prosecuted. In this case the indictment specifically named a statute. The record does not advise us that the prosecution at any time relied on any other statute. The question that comes to us is whether or not the rights of the plaintiff in error have been prejudiced by a ruling of the court below. It is clear that it could make no difference to his rights whether he were prosecuted under the one or the other of the laws which make punishable the acts which are charged in the indictment. The record does not show that there was any uncertainty as to the law which the prosecution relied upon; but, if there were, the remedy was not by demanding election, but by applying for a bill of particulars. Morris v. United States, 161 F. 672, 681, 88 C.C.A. 532.

The plaintiff in error relies upon his motion, made at the close of the testimony, for an instructed verdict of not guilty and now contends that there was no evidence to sustain the verdict. The association...