Sutton v. United States

HUTCHESON, Circuit Judge

(dissenting)-

The majority opinion shows that the defendant did not demur, move to quash, or obtain a bill of particulars as to the information, nor indeed complain of it in any way until by motion in arrest after verdict, when, according to the established rule in this court and elsewhere, any error in the indictment, that is any defect in it short of its complete nullity, was cured by the verdict. 1

It shows too that the evidence was ample to support, indeed was inconsistent with any other reasonable theory than that the defendant’s possession of one hundred 100-pound sacks, of 10,000 pounds, of sugar was in violation of ration orders. Nevertheless, on considerations which seem to me *667 extremely technical and in disregard' both of Revised Statutes, Sec. 1025, 18 U.S.C.A. § 556 , and Section 269 of the Judicial Code, 28 U.S.'C.A. § 391, and the established rule in the federal court,® the majority orders a reversal of the judgment.

The guilt of the defendant was clear, the sentence was not heavy, indeed it was quite light considering the large scale of his operations in violation of rules promulgated as war measures, and if there are cases which justify the reversal of judgments in violation of the substantial error rule and the rule that a defendant must put the trial judge in error by timely calling to his attention matters on which defendant would rely for a reversal, 2

3 this is certainly not one.

Ration order #8 has two sentences. The first prohibits the acquisition, possession, use, etc. of a rationed commodity “except in accordance with the provisions of a ra-. tion order”. The second sentence reads, “No person shall possess, use, permit the use of, sell, or otherwise transfer any rationed commodity acquired in violation of. a ration order.” The first sentence is a statement, by way of exception, of a defense to illegal possession. The second sentence, a statement of what constitutes unlawful possession, in itself negates lawful possession. The information followed the second sentence precisely, and it is the uniform rule that it is sufficient to charge an offense in the language of the law denouncing it.

Keck v. United States, 172 U.S. 434 , 19 S.Ct. 254 , 43 L.Ed. 505 , on which the majority relies, is not in point as is made plain in the many cases which have cited it since and differentiated it. Besides the point was taken in the Keck case not on motion to arrest 4 but by demurrer. I think it clear that if the appellant had timely demurred to the information, the demurrer must have been overruled, for the information specifically and definitely charged the offense as the second sentence of ration order #8 sets it out and there was no necessity to negative the exception in the first sentence on which the majority lays such stress.

United States v. Winnicki, 7 Cir., 151 F.2d 56 , is a case directly in point. There the defendant by demurrer contended that count one of the indictment was bad because it did not negative an exception contained in ration order 1-A alleged to have been violated, to-wit, that defendant had no ration order authorizing his acceptance. The pertinent provision of the ration order reads as follows: “No person, unless permitted by ration order 1-A or by an order,, authorization, or regulation issued by the War Production Board, shall (1) * * * accept a transfer of any tire * *

The Circuit Court of Appeals reversed the judgment sustaining the demurrer, and in a most interesting discussion, particularly at page 58 of 151 F.2d, held: (1) That the charge of the indictment that defendant purchased the tires unlawfully excluded the idea that defendant had any order, authorization or regulation permitting it; (2) that in so charging the crime, no “element” was left out; (3) that under all of the authorities an “element” of a crime is a positive factor, an affirmative act such as intent, without which there is no crime; (4) that ration order 1-A made all transfers of tires illegal unless permitted by order; (5) that since the word “unless” means except, all transfers are illegal except authorized ones; and (6) hence it is an exception, a matter of defense, and as such, it is not an element of the crime, and being an exception, the pleader did not have to negative it.

*668 But the case before us is not one of an exception or demurrer to an information timely made. It is one in which no objection of any kind was made to the information until after verdict. In those circumstances, courts will not search the information to find technical grounds for reversal, but will affirm, unless, which is not the case here, it is made clear that the information did not sufficiently apprise the defendant for him to make his defense. Authorities note 1, supra. The record in this case shows beyond doubt: That the defendant knew what he was charged with; that he was not misled in any way in the preparation of his defense; and that he relied on what he considered the obligation of the government to prove that he was not a carrier of sugar under the defensive provisions of the ration orders and its failure to make that proof.

I think the judgment should be affirmed, not reversed. I dissent.

On Petition for a Rehearing.

HOLMES, Circuit Judge.

The old English statutes of jeofails and amendments did not apply to indictments. In 1789, when the original federal judiciary act was passed, the common-law motion in arrest of judgment in criminal cases was founded on exceptions to the indictment. Only an unsuccessful defendant could make-the motion. It was in form a motion that the judgment be arrested or withheld, on the ground that some error appeared which vitiated the proceedings culminating in the verdict. It was necessary that the error should be manifest on the face of the record. A defect in an indictment that was ground for a general demurrer was sufficient to arrest judgment.

Now not only is the motion in arrest of judgment rigidly restricted to the record, but it is further restricted by federal statutes and rules of criminal procedure. By an act of June 1, 1872, 1 it was provided that no indictment should be deemed insufficient in any court of the United States by reason of any defect in matter of form that did not tend to the prejudice of the accused. This statute is sometimes referred to as the federal statute of jeofails. 2 It definitely limits the operation of the ' common-law motion. The overruling of a motion in arrest of judgment is reviewable on appeal; 3 and then, as was pointed out in our original opinion, another statute comes into play, 18 U.S.C.A. § 556 .

The appellant in this case was tried, convicted, sentenced, and the judgment against him appealed from, before March 21, 1946,, which was the effective date of the present Federal Rules of Criminal Procedure. Prior to that time the procedural rules applicable to this proceeding in the trial court were the Rules of Practice and Procedure, After Plea of Guilty, Verdict or Finding of Guilt, etc., promulgated by the Supreme Court in 1934. 4 It is stated by the Advisory Committee in a note to Rule 34 of the .present rules that it continues existing law except that it enlarges the time for making motions in arrest of judgment from three days to five days.

Rule 59 of the present rules provides that they shall “govern all criminal proceedings thereafter commenced and so far as just and practicable all proceedings then pending.” For these reasons it is important to refer to said Rule 34, which is as follows:

“Rule 34 Arrest of Judgment. The court shall arrest judgment if the indictment or information does not charge an offense or if the court was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made within 5 days after determination of guilt or within such further time as the court may fix during the 5-day period.”

In plain words, the above rule peremptorily provides that the court shall arrest judgment if the indictment or in *669 formation does not charge an offense. That this was the law prior to March 21, 1946, and at the time of the trial below, is clear from the authorities, 5 except as to the change of time within which such motions may be made. With this minor exception, Rule 34 is merely declaratory of existing law; it does not conflict with 18 U.S.C.A. § 556 or 28 U.S.C.A. § 391 , but should be interpreted harmoniously with these procedural statutes ; 6 and neither this rule nor these statutes impaired or restricted the right of an accused to be fully and definitely informed of the particular charge against him. Every defendant in a criminal case has the right to be informed of the essential factual elements of the offense sought to be charged. The Sixth Amendment guarantees it. To withhold essential facts that are required to describe the accusation with reasonable certainty is to deny full information of the nature and cause of the accusation.

Upon the subject of the necessity of an indictment or information containing every essential element of the offense, no more direct and positive statement has been found than that of Hutcheson, Circuit Judge, concurring in Grimsley v. United States, 50 F.2d 509, 511, 512 , as follows:

“The opinion of the majority is an extremely simple and, as I think, correct statement of the principle that two substantial things must concur before a de-feridant may be convicted of a felony in a court of the United States; (1) He must be charged by indictment with the commission of a federal offense; (2) the offense must be proven against him.

“I have always supposed that as an in-r dictment without proof cannot support a conviction, so proof without indictment cannot.

“That Congress by the Act of February 26, 1919, 28 U.S.C.A. § 391 , either intended or has effected the result that in federal courts proof of a federal offense is now the only matter of substance, that indictment is mere technicality, and may, when proof is ample, be entirely dispensed with, I do not believe.

“No case has yet been found by me which declares that failure to charge the essential element of an offense is a mere technicality; on the contrary, there is general concurrence in the statement that if ‘the indictment fails to state facts sufficient to constitute the crime charged, the judgment of conviction cannot, of course, be sustained.’ Sonnenberg v. United States, 9 Cir., 264 F. 327, 328 ; Wong Tai v. United States, 273 U.S. 77, 80 , 47 S.Ct. 300 , 71 L.Ed. 545 ; Wishart v. United States, 8 Cir., 29 F.2d 103, 106 ; Shilter v. United States, 9 Cir., 257 F. 724 , and this even in the absence of an attack of any kind upon the indictment in the court below. Sonnenberg v. United States, 9 Cir., 264 F. 327, 328 .

“Where the indictment has been, challenged by demurrer, raising not technicality, but matters of substance, and the demurrer has been erroneously overruled, by that much more is it clear that a conviction upon such indictment must be reversed. Moore v. United States, 160 U.S. 268 , 16 S.Ct. 294 , 40 L.Ed. 422 .

“Technicality and substance are not so confused in my mind as that I can bring myself to believe that failure to charge the substantive elements of a federal offense constitutes ‘technical error, defect, or exception which does not affect the substantial rights’ of the defendant.”

It is expressly held in the above case that an indictment is fatally defective if it omits an essential element of the offense sought to be charged; 7 and that the right of an accused to be informed of the nature and cause of the accusation against him *670 is a substantial right, the enjoyment of which is assured by the Sixth Amendment. 8 Then for good measure the court adds: “It is not a mere technical or formal right, within the meaning, of 18 U.S.C.A. § 556 or 28 U.S.C.A. § 391 .”

It is true that these rulings were upon demurrers to indictments, but this is immaterial since the defect was not technical but substantial. In fact, there can be no more substantial error committed .against a defendant than the denial of his constitutional rights under the Sixth Amendment. For such an error it was held in Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 , 146 A.L.R. 357 , that the court lost jurisdiction of the case. There the court said, 304 U.S. at page 468 , 58 S.Ct. at page 1024 , 82 L.Ed. 1461 , 146 A.L.R. 357 : “If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed.” We do not mean to hold or imply that the court below lost jurisdiction in the instant case, but we make the comparison to demonstrate how real and substantial is the right of an accused to be informed of the nature and cause of the accusation against him, and how unsound is the contention that an error of this character is formal or technical. In the concurring opinion of Judge Hutcheson, above quoted, it was pointed out that, if the indictment fails to state facts sufficient to constitute the crime charged, the judgment of conviction cannot be sustained “even in the absence of an attack of any kind upon the indictment in the court below.”

We need to say only a few more words with reference to the uncertainty and insufficiency of the offense charged in this information. It is indisputable that ration orders No. 3 and 8 contained literally hundreds of prohibitions, the violation of each of which was a crime. Ration order No. 8 contained not just two sentences but pages of prohibitions. It is correct that Sec. 2.8 of Art. II of said order No. 8 contained two sentences, each of which defined separate offenses, the first referring to sugar possessed and the second to sugar acquired in violation of said order. This section was only one of sixteen paragraphs of prohibitions, i. e. crimes, denounced in Article II of General Ration Order No. 8, to say nothing of those in order No. 3. From the great number of prohibitions in orders No. 3 and 8, we are asked to decide which was the particular offense intended to be charged. On this subject the dissenting opinion said:

“Ration order No. 8 has two sentences. The first prohibits the acquisition, possession, use, etc. of a rationed ' commodity ‘except in accordance with the provisions of a ration order’. The second sentence reads, ‘No person shall possess, use, permit the use --of, sell, or otherwise transfer any rationed commodity acquired in violation of a ration order’. The first sentence is a statement, by way of exception, of a defense to illegal possession. The second sentence, a statement of what constitutes unlawful possession, in itself negates lawful possession. The information followed the second sentence precisely, and it is the uniform rule that it is sufficient to charge an offense in the language of the law denouncing it.” [Italics supplied.]

The court below in its charge instructed the jury as if the defendant were being tried under the first sentence, and also as if he were being tried at the same time for an offense under the second sentence. The situation may be summarized thus: Two of the judges of this court think that no offense is sufficiently stated in the information ; one of us thinks that the information followed the second sentence in Sec. 2.8 of Art. II of Order No. 8; and the district judge tried the case as if two offenses were charged in the information. Can it be said that such a situation leaves no doubt in the minds of the accused and the court of the exact offense intended to be charged? 9

Orders No. 3 and 8 are a loose-leaf code of regulations and prohibitions that were promulgated, construed, explained by ra *671 tionals, and amended repeatedly. 10 The information in this case amounts to no more than charging the defendant with violating this criminal code by having in his possession and under his control ten thousand pounds of sugar. If this judgment were affirmed, the uncertainty as to the nature and cause of the accusation would render equally uncertain a plea of former conviction if later the appellant should be brought to trial for acquiring, transporting, or possessing, this same sugar without a ration order or certificate. By this test, as well as by the other one stated in our' prior opinion, the information is insufficient to meet the requirements of the Sixth Amendment.

Contrary to what the petition for rehearing contends, we have not overlooked Section 17.11 of Second Revised Ration Order No. 3. 11 This section is not complete in itself; its complement must be found elsewhere in the same order if we are to ascertain every ingredient of the offense. It prohibits the possession of sugar where such possession is in violation of “tljis order,” meaning No. 3. No reference is made to order No. 8, and the court cannot rewrite these two into one but' must construe them harmoniously as separate regulations. We discussed order No. 8 in our original opinion, and we are now dealing solely with No. 3. We found the information insufficient under No. 8; we found both the regulation and the information insufficient under No. 3. If we combined the two, however, the information would suffer from the same infirmity that ^.fleets it as to each one separately, viz., the absence of an essential element of the offense.

The petition for rehearing -fails to point out “where” the possession of sugar is in violation of said Section 17.11. It cites this section but mentions no other relevant provision supplementary thereto. It also cites Section 19.3 of order No. 3, which provides that each consumer is permitted to obtain five pounds of sugar during a specified period; but this is far from citing any section of order No. 3 that prohibits the possession of sugar not in accordance with a ration order. Undeterred by this, the petitioner argues that a brief survey of the history of sugar rationing discloses that the mere possession of sugar in excess of the quantity allotted to individuals is an offense under the regulations, but it cites no applicable section, and in the course of such argument there is a palpable shift by petitioner from order No. 3 to order No. 8. Since the combined research of the court and counsel has failed to discover any provision of order No. 3, supplementary to Section 17.11, prohibiting the mere possession of sugar, we adhere to our former ruling that there is no such prohibition so far as order No. 3 is concerned.

Since neither of the judges who concurred in the decision in this case is of the opinion that the petition for rehearing should be granted, the petition is denied.

HUTCHESON, Circuit Judge, dissents.

Perry v. United States, 5 Cir., 84 F. 2d 567 ; Bell v. United States, 5 Cir., 100 F.2d 474 ; Gay v. United States, 5 Cir., 12 F.2d 433 ; Karger v. United States, 5 Cir., 46 F.2d 302 ; Berry v. United States, 9 Cir., 259 F. 203 ; Dunbar v. United States, 156 U.S. 185 , 15 S.Ct. 325 , 39 L.Ed. 390 ; Hagner v. United States, 285 U.S. 427 , 52 S.Ct. 417 , 76 L.Ed. 861 ; United States v. Wagoner, 7 Cir., 143 F.2d 1 . Cf. Grimsley v. United States, 5 Cir., 50 F.2d 509 .

“While the rules of criminal pleading require that the accused shall be fully apprised of the charge made against him, it should, after all, be borne in mind that the object of criminal proceedings is to convict the guilty, as well as to shield the innocent; and no impracticable standards of particularity should be set up, whereby the government may be entrapped into making allegations which it would be impossible to prove. * * * Neither in critiiinal nor in civil pleading is it required to anticipate or negative a defense.” Evans v. United States, 153 U.S. 584 , at page 590, 14 S.Ct. 934 , at page 937, 38 L.Ed. 830 ; McKelvey v. United States, 260 U.S. 353 , 43 S.Ct. 132 , 67 L.Ed. 301 .

Maryland Cas. Co. v. Reid, 5 Cir., 76 F.2d 30 .

Cf. Hagner v. United States, 285 U. S. 427 , 52 S.Ct. 417 , 76 L.Ed. 861 .

17 Stat. 198 , c. 255, See. 8, 18 U.S.C.A. § 556 .

Dobie on Federal Procedure, Sec. 30, p. 67.

Blitz v. United States, 153 U.S. 308, 312 , 14 S.Ct. 924, 925 , 38 L.Ed. 725 ; Rodriguez v. United States, 198 U.S. 156, 165 , 25 S.Ct. 617, 620 , 49 L.Ed. 994 .

292 U.S. 661 , 18 U.S.C.A. following section 688.

Blitz v. United States, 153 U.S. 308 , 14 S.Ct. 924 , 38 L.Ed. 725 ; Durland v. United States, 161 U.S. 306 , 16 S.Ct. 508 , 40 L.Ed. 709 ; Ledbetter v. United States, 170 U.S. 606, 614 , 18 S.Ct. 744 , 777, 42 L.Ed. 1162 ; Clement v. United States, 8 Cir., 149 F. 305 ; Morris v. United States, 8 Cir., 168 F. 682 ; Floren v. United States, 8 Cir., 186 F. 961 .

Rule 34 was promulgated by the Supreme Court pursuant to the Act of June 29, 1940, ch. 445, 54 Stat. 688 , 18 U.S.C.A. § 687 . It provides that after the effective date “all laws in conflict therewith shall be of no further force and effect.”

Citing Evans v. United States, 153 U. S. 584 , 14 S.Ct. 934 , 38 L.Ed. 830 .

Citing United States v. Cruikshank, 92 U.S. 542 , 23 L.Ed. 588 ; United States v. Hess, 124 U.S. 483 , 8 S.Ct. 571 , 31 L. Ed. 516 .

In Ledbetter v. United States, 170 U. S. 606 , at pages 609, 610, 18 S.Ct. 774 , at page 775, 42 L.Ed. 1162 , the court said: “We have no disposition to quali *671 fy what has already been frequently decided by this court, that where the crime is a statutory one it must be charged with precision and certainty, and every ingredient of which it is composed must be clearly and accurately set forth, and that 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. United States v. Cook, 17 Wall. 168, 174 , 21 L.Ed. 538 ; United States v. Cruikshank, 92 U.S. 542, 558 , 23 L.Ed. 588 ; United States v. Carll, 105 U. S. 611 , 26 L.Ed. 1135 ; United States v. Simmons, 96 U.S. 360 , 24 L.Ed. 819 ; United States v. Hess, 124 U.S. 483 , 31 L. Ed. 516 ; Pettibone v. United States, 148 U.S. 197 , 13 S.Ct. 542 , 37 L.Ed. 419 ; Evans v. United States, 153 U.S. 584 , 14 S.Ct. 934 , 38 L.Ed. 830 .”

Second Revised Ration Order No. 3 was issued on November 14, 1944, consisted of twenty-six pages, and was amended fifty-five times up to and including December 21, 1945. General Ration Order No. 8 Was issued on March 25, 1943, and amended twelve times up to and including June 30,1945.

“Sec. 17.11. Unlawful Use of Possession. No person shall at any time either use or have in his possession or under his control or take delivery of any sugar, certificates, stamps or War Ration Books, where such possession, control, or acquisition is in violation of this order.”