Wininger v. United States

• Decision Date: 06 May 1935
• Docket Number: No. 10111,10112.,10111
• Citation: 77 F.2d 678
• Parties: WININGER v. UNITED STATES. SUITOR v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

77 F.2d 678 (1935)

WININGER v. UNITED STATES.

SUITOR v. UNITED STATES.

Nos. 10111, 10112.

Circuit Court of Appeals, Eighth Circuit.

May 6, 1935.

Fadjo Cravens, of Fort Smith, Ark., for appellants.

Clinton R. Barry, U. S. Atty., of Fort Smith, Ark. (Duke Frederick, Asst. U. S. Atty., and John E. Harris, Asst. U. S. Atty., both of Fort Smith, Ark., on the brief), for appellee.

Before STONE, SANBORN, and FARIS, Circuit Judges.

FARIS, Circuit Judge.

These are appeals from convictions, on joint indictments, and on a joint trial, for attempting to pass or utter counterfeit money. Appellants were also each convicted on another count of possessing such money. But since but one punishment was inflicted, the latter count and conviction need be accorded no discussion beyond bare mention. The facts are wholly similar; by agreement the two cases have been presented here together, and will be dealt with in a single opinion.

The indictment was attacked, both by motion to quash, for that it was found and returned by a grand jury, chosen wholly from counties within the Texarkana Division, whereas the alleged crime was committed in the Fort Smith Division, and by a demurrer, for that (a) it did not charge that the money in question was counterfeit, but per contra, that it was genuine money, and (b) that the indictment does not contain a copy in haec verba of the alleged counterfeit, but upon the point merely avers that "a more particular description of said false, forged and counterfeited obligation of the United States, being to the grand jury unknown." The indictment, however, described the note as "a Federal Reserve Bank Note of the denomination of twenty dollars, in the resemblance and similitude of the true and genuine obligations of the United States."

The indictment on its face puts the venue as being in the "Western District of Arkansas, Texarkana Division." It nowhere sets out the territorial limits of the grand jury's inquisitorial functions. Touching where the component members of the grand jury which found it, hailed from, it is stipulated, that none of them came from the Fort Smith Division. Since the case of Salinger v. Loisel, 265 U. S. 224, 44 S. Ct. 519, 68 L. Ed. 989, followed by this court in Shaw v. United States, 1 F. (2d) 199, 201, it has not been doubted in this, or any other circuit, that an indictment may be returned in a division other than that in which the offense was committed. The case must, of course, be tried, as was here done, in the division where the offense was committed.

The Shaw Case, supra (which was under submission when the Salinger Case was decided, and followed it, as in duty bound), when read in the light of the rule in the Salinger Case, disposes of every complaint made by appellants here. In that case it was said:

"Obviously, this ruling settles the point, unless a distinction is to be made from the fact, that in the case of Salinger v. Loisel, supra, the grand jury which found and presented the indictment was drawn from the body of the district, while in the case at bar the grand jury is characterized in the record, as the `grand inquest of the United States for the Eastern division of the Eastern district of Arkansas.' This difference ought not seriously to affect the rule, in the light of the fact that the Supreme Court has now held, that the word `prosecution,' as used in section 53 of the Judicial Code 28 USCA ß 114, does not include the finding and presentment of an indictment, and of the further fact that this construction at once brings the question down to a mere matter of the alleged incompetency or disqualification of component members of the grand jury, which latter question was waived by the failure to file a plea in abatement or other similar plea before entering a plea of not guilty. Teal v. State, 22 Ga. 75, 68 Am. Dec. 482; Coburn v. State, 151 Ala. 100, 44 So. 58, 15 Ann. Cas. 249; State v. Carver, 49 Me. 588, 77 Am. Dec. 275; 8 R. C. L. 113, 114.

"Moreover, it is difficult to appreciate wherein defendant could have been hurt by the fact that the indictment was presented against him by utter strangers presumably, who ought to have been wholly unbiased and unprejudiced. Since he could not thus have been prejudiced, some reliance may be put upon the amended statute of jeofails. Act Feb. 26, 1919, 40 Stat. 1181 (Comp. St. Ann. Supp. 1919, ß 1246 28 USCA ß 391). It follows that this point should be disallowed."

The record does not bear out the insistence of appellants that the grand jury which found the indictment against them was sworn and impaneled to inquire only as to the Texarkana Division. Such showing as does appear leaves an inference wholly opposed to the contention made, as already forecast. Other cases dealing with these questions are Hill v. United States (C. C. A.) 15 F.(2d) 14, Chew v. United States (C. C. A.) 9 F.(2d) 348, and Biggerstaff v. United States (C. C. A.) 260 F. 926.

In charging that the alleged counterfeit dealt with was in fact counterfeit, the indictment says that it was "a certain false, forged and counterfeited obligation of the United States, to-wit a Federal Reserve Bank note of the denomination of twenty dollars, in the resemblance and similitude of the true and genuine obligations of the United State, to-wit, Federal Reserve Bank notes of the denomination and value of twenty dollars, a more particular description of said false, forged and counterfeited obligation of the United States being to the grand jury unknown."

Upon the above-quoted language of the indictment, appellants contend that there is no charge that the counterfeit was in fact such, but that the language quoted must be construed as an allegation that the note attempted to be uttered was a genuine obligation of the United States. It is charged that the thing dealt with was false, forged, and counterfeited, in the resemblance and similitude of the true and genuine obligations of the United States. True, it is called an obligation of the United States, but the word obligation is modified by the characterization that it is a "false, forged and counterfeited obligation," which, of course, means that it was no obligation at all. The criticism verges upon the trivial and captious.

It must be kept in mind that the prosecution was for an attempt to pass, or utter the counterfeit. So, if it be conceded arguendo, that it is necessary in an indictment for forgery, or counterfeiting to set out in haec verba the instrument alleged to constitute the forgery, this strict rule, ex necessitate cannot always obtain in an indictment for attempting to...