Wheatley v. United States, 5530.

• Decision Date: 31 December 1946
• Docket Number: No. 5530.,5530.
• Parties: WHEATLEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

159 F.2d 599 (1946)

WHEATLEY v. UNITED STATES.

No. 5530.

Circuit Court of Appeals, Fourth Circuit.

December 31, 1946.

Jacob S. Hyer, of Elkins, W. Va., for appellant.

Joe V. Gibson, U. S. Atty., of Kingwood, W. Va. (Wayne T. Brooks, Asst. U. S. Atty., of Clarksburg, W. Va., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

The defendant in this case was sentenced to prison for twenty-four years after a verdict of guilty upon an indictment which charged that he "unlawfully seized, kidnapped and held Denzil Wilson, for the purpose of forcing him, the said Denzil Wilson, to furnish transportation for him, the said Richard Lawrence Wheatley, from Newell, West Virginia, to East Liverpool, Ohio, and transported him, the said Denzil Wilson from Newell, West Virginia, in the Northern District of West Virginia, to East Liverpool, Ohio." The judge who presided at the trial was taken ill, and the sentence was pronounced by another judge after he had been informed that the accused had a bad criminal record and had previously served a number of prison sentences.

We are asked to set the judgment aside on the following grounds: (1) that the indictment was defective; (2) that the court erred in allowing the Government to produce in evidence a knife which was used by the defendant in the commission of the crime; and (3) that the charge of the court was so unfavorable to the defendant as to unduly influence the jury against him.

It is contended that the indictment is defective because it does not clearly and unambiguously state the elements of the offense. The indictment is somewhat informal in character and does not carefully follow the words of the statute. It does not charge, as it might well have done, that the defendant knowingly transported in interstate commerce Denzil Wilson who had been unlawfully seized, abducted and carried away. We do not commend the indictment as a form to be followed, but nevertheless we cannot say that it does not contain a statement of the essential facts constituting the offense charged, as required by Rule 7(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687. It is true that the indictment does not charge that the defendant knowingly transported his victim, but the allegation that the defendant unlawfully seized and kidnapped Wilson and transported him from one state to the other necessarily implies that he had the knowledge which is an essential element of the offense, and this we think is sufficient. See Rumely v. United States, 2 Cir., 293 F. 532, 547, certiorari denied 263 U.S. 713, 44 S.Ct. 38, 68 L.Ed. 520; Howenstine v. United States, 9 Cir., 263 F. 1, 4; Holsman v. United States, 9 Cir., 248 F. 193, 195, certiorari denied sub nom Freeman v. United States, 249 U.S. 600, 39 S.Ct. 258, 63 L.Ed. 796.

It is also urged that the indictment is defective because it was not signed by the United States Attorney for the Northern District of West Virginia. It was in fact signed by one of the assistant United States attorneys for the District who signed the name of the United States Attorney without indicating that it was not signed by that official himself. Rule 7(c) of the Federal Rules of Criminal Procedure provides that an indictment shall be signed by the attorney for the Government. It has been held that the signature of the prosecuting attorney is no part of the indictment and is necessary only as evidence of the authenticity of the document; and it has also been held that the improper signing of an indictment is not such a defect as would invalidate the instrument; In re Lane, 135 U.S. 443, 449, 10 S.Ct. 760, 34 L.Ed. 219; Miller v. United States, 6 Cir., 300 F. 529, 536, certiorari denied, 266 U.S. 624, 45 S.Ct. 123, 69 L.Ed. 474; King v. United States, 5 Cir., 279 F. 103, 104; United States v. McAvoy, C.C.N. Y., 26 Fed.Cas. (No. 15,654) 1044, 1045. These rulings are in harmony with the statutory provision contained in 18 U.S. C.A. § 556 which provides that no indictment in a federal case shall be deemed insufficient, nor shall the judgment be affected by reason of any defect or imperfection in matter of form only which shall not tend to the prejudice of the defendant. Moreover, Rule 52(a) of the Rules of Criminal Procedure provides that any error, defect or irregularity, which does not affect substantial rights, shall be disregarded. The indictment in this case was not invalidated by the manner in which the signature was appended.

There was evidence tending to show that the offense was committed in the following manner: On Sunday evening, May 26, 1946, at dusk the defendant, an elderly man, met Wilson in Newell at the place of a mutual acquaintance, and it was arranged that the defendant should ride with Wilson to the bridge across the Ohio River which connects Newell, West Virginia, with East Liverpool, Ohio. The defendant got in the front seat of the car with Wilson who drove towards the bridge. Before reaching it they arrived at a point near Wilson's home, and he slowed down and said he was not going any further. Thereupon the defendant pulled a knife from under his coat and stuck the point against the ribs of Wilson and ordered him to go across the bridge and then to a point near the defendant's home. The defendant, however, paid the toll on the bridge and when he got out of the car he threw a quarter on the seat to pay Wilson's toll on the return trip.

The testimony as to the defendant's sobriety at the time is in conflict. He testified that he had been in a gambling and drinking place since 11 a.m. and was drunk and had no recollection of what subsequently occurred. Wilson, the prosecuting witness, testified that he could not tell whether the defendant was drunk or sober. A witness for the Government testified that the defendant had been confined in the Weston State Hospital at Weston, West Virginia, as an alcoholic.

Wilson identified the knife which was used on this occasion. It was produced by a police officer of East Liverpool who searched the quarters in which the defendant lived and found the knife in the defendant's bed. At that time the police officer had a West...