White v. United States

• Citation: 67 F.2d 71
• Decision Date: 12 September 1933
• Docket Number: No. 832.,832.
• Parties: WHITE v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

67 F.2d 71 (1933)

WHITE v. UNITED STATES.

No. 832.

Circuit Court of Appeals, Tenth Circuit.

September 12, 1933.

Frank Settle, of Tulsa, Okl. (Hulette F. Aby and William F. Tucker, both of Tulsa, Okl., on the brief), for appellant.

Harry Seaton, Asst. U. S. Atty., of Tulsa, Okl. (John M. Goldesberry, U. S. Atty., of Tulsa, Okl., on the brief), for the United States.

Before PHILLIPS and McDERMOTT, Circuit Judges, and KENNEDY, District Judge.

KENNEDY, District Judge.

The appellant, defendant in the court below, was convicted by the verdict of a jury upon an indictment charging him with concealing property of a bankrupt corporation of which he was president, known as Pig Skin Davis, Incorporated (11 USCA § 52), and from the judgment entered thereon he appeals.

There were three counts of the indictment all charging concealment of property belonging to the bankrupt. Before the trial a demurrer and motion to quash was interposed directed to the sufficiency of the indictment, which demurrer and motion were overruled and an exception reserved. The case proceeded to trial and upon its submission to the jury by the trial court the second count was dismissed. The jury returned a verdict of guilty upon the first count and not guilty upon the third count. Upon the first count resulting in conviction, the court interposed a sentence of 18 months in the penitentiary. This appeal brings before the court only the record as it applies to count one of the indictment, upon which the attack is here made. An analysis of this count discloses that, after alleging the bankruptcy of the corporation, the jurisdiction of the court, and the appointment of the receiver, it charges that from the 1st day of July, 1930, to the 10th day of February, 1932, defendant was the qualified and acting president of the bankrupt corporation, and "that the said defendant, as such president, officer and agent of said Pig Skin Davis, Incorporated, a corporation, on or about the 28th day of January, A. D. 1932, down to and including the date of the returning of this indictment, to wit, June 14, 1932, in Tulsa, Tulsa County, State of Oklahoma, and within the the jurisdiction of this court, with the intent on the part of him the said defendant, Ernest H. White, to defeat the operation of said Acts of Congress relating to bankruptcy, and Title 11 of the United States Codes Annotated, and in contemplation of bankruptcy, did knowingly, fraudulently and feloniously conceal personal property of said Pig Skin Davis, Incorporated, a corporation, of the total value of Seventeen Thousand Dollars ($17,000), a more particular description thereof being to the Grand Jurors unknown, contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States of America."

It may be noticed in passing that while the first count alleges the appointment and qualification of a receiver it does not specifically allege that the property was concealed from such receiver, certainly a deficiency in itself fatal. This situation does not apply to counts two and three. However, this is not the basis of the attack upon the indictment on behalf of the appellant. We observe also that in count three, where there was a specific description of the property alleged to have been concealed, there was a verdict of acquittal.

The contention of the appellant is that the first count of the indictment upon which the appellant was convicted is so indefinite that it is insufficient in law and void, in that it does not apprise the defendant of the nature of the charge against him in failing to state what particular personal property of the bankrupt the defendant is charged with having concealed. Reverting again to the language of said first count, it is charged that the appellant "did knowingly, fraudulently and feloniously conceal personal property of the said Pig Skin Davis, incorporated, a corporation, of the total value of Seventeen Thousand Dollars ($17,000), a more particular description thereof being to the Grand Jurors unknown."

The point definitely presented is, as to whether or not the trial court erred in overruling the demurrer to the first count of the indictment. Inasmuch as the subject of definiteness of criminal pleadings is more or less of a controversial one, it may be helpful to examine and quote from a number of selected authorities touching the general rule and also relating to charges under the specific statute upon which the conviction was had in the case at bar.

In 31 C. J. at page 650, the following rule is laid down: "Under the constitution of the United States, which is not a restriction on the states in this respect, and by like provisions in the constitutions of the various states, accused is entitled to be informed of the nature and cause of the accusation against him. Such provisions are not affected by constitutional provisions authorizing the court on appeal in a criminal case to enter a proper judgment. They are a substantial redeclaration of the common-law rule requiring the charge to be set out with precision and fullness, so that defendant may make his defense and avail himself of his conviction or acquittal in a subsequent prosecution for the same offense. Being based on the presumption of innocence, they require such certainty in indictments and informations as will enable an innocent man to prepare for trial; but no greater particularity of allegation than may be of service to accused in understanding the charge and preparing his defense; and while all the elements of, or facts necessary to, the crime charged must be fully and clearly set out, it is not necessary to allege matters in the nature of evidence, or to set out the means by which the crime is accomplished, unless the act is one which may be criminal or otherwise, according to the circumstances under which it is done."

Further, at page 663, the text reads: "A person indicted for a serious offense is presumably innocent, and the sufficiency of an indictment must be tested upon the presumption that he is innocent and has no knowledge of the facts charged against him."

In the much-quoted case of United States v. Cruikshank, 92 U. S. 542, at page 557, 23 L. Ed. 588, Mr. Chief Justice Waite used the following language: "In criminal cases, prosecuted under the laws of the United States, the accused has the constitutional right `to be informed of the nature and cause of the accusation.' Amend. VI. In United States v. Mills, 7 Pet. 142 8 L. Ed. 636, this was construed to mean, that the indictment must set forth the offence `with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged;' and in United States v. Cook, 17 Wall. 174 21 L. Ed. 538, that `every ingredient of which the offence is composed must be accurately and clearly alleged.' 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. 1 Arch. Cr. Pr. and Pl., 291. The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances."

In United States v. Hess, 124 U. S. 483, at page 486, 8 S. Ct. 571, 573, 31 L. Ed. 516, we find the following: "The statute upon which the indictment is founded only describes the general nature of the offense prohibited; and the indictment, in repeating its language without averments disclosing the particulars of the alleged offense, states no matters upon which issue could be formed for submission to a jury. The general, and with few exceptions, of which the present case is not one, the universal rule, on this subject, is that all the material facts and circumstances embraced in the definition of the offense must be stated, or the indictment will be defective. No essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment or implication, and the charge must be made directly, and not inferentially, or by way of recital."

In Evans v. United States, 153 U. S. 584, at page 587, 14 S. Ct. 934, 936, 38 L. Ed. 830, we read: "Even in the cases of misdemeanors, the indictment must be free from all ambiguity, and leave no doubt in the minds of the accused and the court of the exact offense intended to be charged, not only that the former may know what he is called upon to meet, but that, upon a plea of former acquittal or conviction, the record may show with accuracy the exact offense to which the plea relates. United States v. Simmons, 96 U. S. 360 24 L. Ed. 819; United States v. Hess, 124 U. S. 483, 8 S. Ct. 571 31 L. Ed. 516; Pettibone v. United States, 148 U. S. 197, 13 S. Ct. 542 37 L. Ed. 419; In re Greene C. C. 52 F. 104."

The same general rule is reiterated in Bartell v. United States, 227 U. S. 427, at page 431, 33 S. Ct. 383, 384, 57 L. Ed. 583: "It is elementary that an indictment, in order to be good under the Federal Constitution and laws, shall advise the accused of the nature and cause of the accusation against him, in order that he may meet the accusation and prepare for his trial, and that, after judgment, he may be able to plead the record and judgment in bar of further prosecution for the same...