Petition for a Writ of Certiorari — Denny v. United States

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IN THE

| Supreme Court of the United States

Ocroser Term, A. D. 1947.

No. B 50

GORDON KEITH DENNY,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

AND BRIEF IN SUPPORT THEREOF.

j Garnet

EDWARD J. LEENEY,

JAMES J. CLARK,

Calumet Building,

Hammond, Indiana,

Attorneys for Petitioner.

Scheffer Printing Company, Del. 717!

INDEX

PAGE

Petition

Summary Statement of Matter Involved ................ 1

Statement Disclosing that this Court Has Juris-

diction to Review the Judgment 4

Questions Presented 6

Reasons Relied on for Allowance of the Writ ........ 9

Conclusion and Prayer 10

Brief in Support of Petition : 13

Opinion Below 13

Jurisdiction 13

Questions Presented a 13

SI UII itsheviasinieneretininiomnatitiaiannneneinines 14

Summary of Argument 15

I. After an indictment is returned, no change can be

made in the body without re-submission to the

Grand Jury ..... 15

II. Amendment of Indictment prohibited by the Fifth

Amendment of the Constitution of the United

ne 17

Ill. A contradictory verdict should not be allowed

Oh NINE ancentennnmasinnsnnia ‘ —

ee ae 20

I&II. Indictment cannot be amended either at common

low or under the Federal Rules of Criminal Pro-

cedure .......... 21

Amendment of an Indictment is violative of the

Fifth Amendment of the Constitution ................ 21

Ill. Status of Contradictory Verdict 20.0... 32

IE WIE TOG sccisncnontntreesnnistininnadngsitiansinsnnsenintonasnion 44

ii

TasBLE or Cases AND AUTHORITIES.

PAGE

A.

50 American Jurisprduence 425, Sec. 402 .........csseesssees 16

50 American Jurisprudence 429, Sec. 405 .........ccssesees 16

American Surety Co. v. U. S., 239 Fed. 680, 6864 ............ 19

Audett v. U. &., 132 F. 2d 528, SSD .........ccccsssssssssssserseseers 19

B.

Boyle v..U.. S., 22 Fr. 2d 547, SAB ....ccccccccscsrssssecssssceseee 20, 41, 43

C.

Carrignan v. U. S., 290 F. 189, 190 38, 42

Cohens v. Virginia, 6 Wheat. 264 399; 19 U.S. 264......18, 39

Commonwealth v. Drew, 3 Cush. 279 . 23

25 Corpus Juris 220 iden tictisieriiehialtinestadictiotl 17

59 Corpus Juris 984 (Sec. 582) .......cccscecsccssssseseeeees 17, 29, 30

59 Corpus Juris 1124-1127 (Sec. 665) 16, 29

59 Corpus Juris 1129-1130 (Sec. 669) ........ccscsesesseeseees 16, 29

D.

Daviess . Fairburn, 3 How. 636, 645 18

DeLuca v. U. S., 299 F. 741, 745 15, 26

Dodge v. U. S., 258 F. 300, 305 .............ccseseees 15, 25

Dunn v. U. S., 284 U. S. 390, 392; 52 S. Ct. 189; 76 L.

ee 19, 32, 36

E.

Edgerton v. U. S., 143 F. 2d 697, 698, 699 ........s.sccsesseseees 15-23

Ex parte Bain, 121 U.S. 1, 8, 10, 13; 30 L. Ed. 849;

FF OR FR casacccctetessesscceianeseitecnneccabisnnsnnitacationccbantes 2, 9, 15, 22

ae

PAGE

F.

Federal Digest, Vol. 20 Courts, Key No. 107, p. 427-

EE sieniwicinisoninbatineitenccuncinoistindes sigs 19

Federal Digest, Vol. 20 Courts, Key No. 92, p. 362-

WO Aiesniidichnrasbingchadiecdionabihimamaiulgesciiisdh aad-atcectnt ais tee 19

Federal Rules of Criminal Procedure, Rule 7 veeeccccesss.... 27

Fifth Amendment, Constitution of United States ........ 14, 31

Ford v. U. S., 273 U. S. 593, 602; 71 L. Ed. 793; 47

de a ON TS | TR TOEN Ee ot RON ROR: 16, 24

Foohay 0... &., OBB. 9d DOG, BUF oicisscccectesssesseiseassenssese. 19

G.

Garrett v. U. S., 17 F. 2d 479, 480 occcccccccccessssssescecsseeoeseees 15,26

Goto v. Lane, 265 U. S. 393, 402; 68 L. Ed. 1070; 44S.

RTD: ccitinchicctabialdnichisintbietinaptiitoadehuabeadieaitc <3 15, 24

Gosener v. U. S., 9 F. 2d 603, 6064 ...... ns 42

Harriman v. Northern Securities Co., 197 U. S. 244,

291; 25 S. Ct. 493; 49 L. Ed. 532 .o..cccccccccccccscossosss. 18, 41

Nungheles, Executor, v. U. S., 295 U. S. 602, 627 ;

55 S. Ct. 869; 79 L. Ed. 1611 bicsiinstiipnineilahahensliaisbicengi 18, 40

J.

John Hohandel Co. v. U. S., 295 Fed. 489, 490 oo... 20, 42

Johnson v. U. S., 124 F. 2d 101, 102 o..ceccccccccccccceccecsossosees 16

K.

Knapp & Monarch Co. v. Com’r. Int. Rev., 139 F.

en I TE busbinvthaksebsddisesintilibcasbibwiitiaidiie ih ct oi 17

M.

Marshallo v. United States, 298 Fed. 74, 75 c.ccccccsssssssssee 42

Muncy v. U. S., 289 F. 780, 781. ..scsccsssssceccssessssessssesoes 16, 28, 30

iv

PAGE

Murphy v. U. S., 18 F. 2d 509, 510, 512 ............0 20, 38, 42, 43

Mutual Benefit Health & Accident Assn. v. Bowman,

99 F. 2d 856, 858 19

0.

O’Donoughe v. U. S., 289 U. S. 516, 550; 53 S. Ct. 740;

77 L. Ed. 1356 ; 18, 40

PB.

Paso Robles Mercantile Co. v. Com’r. of Int. Rev.,

33 F. 2d 653, 654 17

Peru v. U. S., 4 F. 2d 881, 884 20, 42, 43

R.

a ee ee

570 17

Rawlston v. Cox, 123 F. 2d 196, 197 .........00000000 16

Rex v. Wilkes, 4 Burr. 2527 ...... 21

Roche v. Evaporated Mik Assc., 319 U. ‘Ss. 21, 26; 87

L. Ed. 1185; 63 S. Ct. 938 eneere |

Rosenthal v. U. S., 276 By 714 .ccesessssssessssscesenenesneenees 20, 38, 41

s.

Safe Deposit é T. Co. v. Virginia, 280 U.S. 83, 94; 50

Te COR Ba FO Ben BB BID cinanintintentemnsenensepnsnssenesessnenses 18

Salinger v. U. S., 272 U. S. 542, 549; 71 L. Ed. 398;

BU te AR Oe ia ceca ntitneinceeniinenaiinnnierennnivieneeneiannans 15, 24

Sealfon v. U. &., ....000 TW. Ba scsssres ; 68 S. Ct. 237 ........

2, 4, 10, 15, 20, 33, 43

Setdon v. U. S., 16 BF. 2 197, 198 .......cccccscssssssscssssssseenssesenes 42

Spedler v. U. S., 31 F. 2d 682, 684 idntnlesictiniia 19, 42

Steckler v. U. S., 7 F. 24 59, 60 scan: a

GOD S. 7. Ba, UB TH. BR TET, POO seccsescenscsvsersninsnsnsivinininssnens 19

OMS Ws 7. Ba, TD TP. Be TI cnccscerscecnevesvsnrsnrerresrnenanvensin 15, 26

-—

v

PAGE

U.

U. S. C.—Title.18, Sec. 88 14, la

U.S. C.—Title 18, Sec. 415 14, 1a

United States v. General Motors Corp., 121 F. 2d 376, ‘i

411 .

United States v. Hare, 153 F. 2d 816, 819 19

United States v. Holtz, 288 F. 81, 82 15

United States v. Krepper, 159 F. 2d 958 15

United States v. Meltzer, 100 F. 2d 739, 741 ........ccsssseseees 19

United States v. Norris, 281 U. S. 619, 622; 74 L. Ed.

076; 50 S. Ct. 424 16, 24

Wright v. Nagle, 101 U. S. 791, 796; 25 L. Ed. 921 ........ 18, 33

W.

Wright v. U. S., 302 U. S. 583, 593; 58 S. Ct. 395; 82

L. Ed. 4839 .......... 18, 40

IN THE

Supreme Court of the United States

Ocroser Term, A. D. 1947.

GORDON KEITH DENNY,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

AND BRIEF IN SUPPORT THEREOF.

To The Honorable The Chief Justice And Associate

Justices Of The Supreme Court Of The United States:

SUMMARY STATEMENT OF MATTER INVOLVED.

In this petition, petitioner, Gordon Keith Denny, re-

spectfully requests this Honorable Court, to review the

Judgment and Decision, of the United States Circuit

Court of Appeals, for the Seventh Circuit, in Cause No.

9419, handed down December 30, 1947.

In its decision, the Circuit Court of Appeals, in review-

ing a Judgment of the District Court of the United States,

iceliiaan

for the Northern District of Indiana, was called upon and

did construe The Fifth Amendment to the Constitution

of the United States, and Rule 7 (d) of the Federal

Rules of Criminal Procedure and the doctrine announced

in Ex Parte Bain, 121 U. 8. 1, relative to the amendment

of the indictment involved (R. 274), it is such construc-

tion by the Circuit Court, that petitioner seeks to question

in the within petition.

The Court of Appeals also sustained the judgment of

the District Court on a verdict of the jury, finding pe-

titioner “not guilty’? on Count I, that of conspiracy to

commit the offense, defined in Title 28, U.S.C. Sec. 415,

the transporting of stolen goods in interstate commerce,

knowing it to be stolen, and at the same time “guilty”

on Count II, charging the substantive crime described

by the above statute. This contradictory verdict, on the

identical evidence, where the only element in dispute

was ‘‘guilty knowledge’’, was likewise challenged both in

the trial court and in the Cireuit Court of Appeals, and

its validity and that of the judgment sustaining it, is

sought to be raised in this Court, (R. 275), as being

repugnant to the principles set forth in Sealfon v. United

States, ........ UG. Bann , 68 Sup. Ct. 237.

Petitioner was convicted in the District Court, of caus-

ing stolen meat and butter of the value of $7,000, to be

transported from Chicago, Lllinois, to Hammond, Indiana,

knowing the merchandise had been stolen, in violation of

Title 18, Section 415, of the United States Code. (R. 1,

266)

The indictment contained three counts, in two of which

petitioner was named. (R. 1) The first count charged

petitioner, along with five others with having conspired,

antties

in violation of Title 18, Section 88, U.S.C. (R. 1) to com-

mit the substantive crime set forth in the Second Count,

(R. 2) namely the violation of Title 18, Section 415,

U.S.C. above. He was found not guilty on the First

Count (conspiracy charge) but guilty on the Second Count

(the substantive charge). (R. 265)

On Count I of the Indictment, the conspiracy count,

petitioner was charged under his own proper name, “Gor-

don Keith Denny’’ (R. 1), and on this he was found not

guilty. (R. 265)

On Count II, not petitioner, but one ‘‘Gordon Keith

Kenny” was named. (R. 2). Before arraignment pe-

titioner filed his Verified Motion for Dismissal and Abate-

ment (R. 3), setting forth that he was not the “Gordon

Keith Kenny,’”’ charged. This motion was overruled and

the trial court, (R. 5) on motion of the United States

Attorney, (R. 4) over the objection of petitioner, author-

ized and permitted the United States Attorney to amend

this count of the indictment. (R. 5). Pursuant to this

action of the court, the United States Attorney physical-

ly amended Count II of the indictment, without resub-

mission to the Grand Jury, by striking therefrom the

name “Gordon Keith Kenny,” and substituting therefor

the name ‘“‘Gordon Keith Denny.”’ (R. 6)

Thereupon, petitioner filed his Verified Motion for

Dismissal, because of the amendment of Count IT of the

indictment (R. 6); this motion was also overruled. (R. 6).

The principal question presented in the Circuit Court

of Appeals, and decided adversely to petitioner, and on

which the judgment of this court is now sought, is the

right of a United States Attorney, or the Trial Court,

to amend an indictment returned by a grand jury, under

—

the situation presented by the record here, without re-

submission to the grand jury.

Petitioner has consistently contended, both in the Trial

Court and on appeal in the Circuit Court of Appeals,

that the amendment of the indictment, disclosed in this

record, is in violation of, and contrary to the provisions

of the Fifth Amendment of the Constitution of the United

States, and Rule 7 (d) of the Federal Rules of Criminal

Procedure. (18 U.S.C. foll. Sec. 687) and the doctrine

announced in Ex Parte Bain, 121 U. S. 1; that the amend-

ment destroyed the jurisdiction of the court.

The only other question presented was that relating

to the contradictory character of the verdict, wherein

he was found “not guilty”? of having conspired to commit

the substantive crime, of transporting stolen property in

interstate commerce, with guilty knowledge, and at the

same time “guilty” of the substantive crime itself, where

the evidence was identical, and the only element in dis-

pute was ‘‘guilty knowledge’’. A judgment upholding

such a verdict, petitioner respectfully submits, is con-

trary to the holding of the decision of this Honorable

Court, in the recent case of Sealfon v. United States,

saa U.S. ........, 68 Sup. ~ 7 (Jan. 5, 1948).

Statement Disclosing Tha. . Court Has Jurisdiction

To Review tne Judgment.

The Transcript of the Record herein affirmatively dis-

closes that the Indictment in this cause, charging petition-

er with the violation of a criminal statute of the United

States, was filed in the United States District Court for

the Northern District of Indiana on June 5, 1946 (R. 1);

that thereafter and prior to arraignment, petitioner on

June 17, 1946, filed his Motion for Dismissal and Abate-

ment of Count II thereof (R. 3); that on the 20th day

of June, 1946, the United States Attorney filed his peti-

tion asking leave to amend the indictment (R. 4); that

thereafter on the 2nd day of July, 1946, the District

Court overruled petitioner’s motion for Dismissal and

Abatement and granted the United States Attorney’s

Petition, Asking Leave to Amend the Indictment (R. 5);

that pursuant to such order, on October 11, 1946, the

United States Attorney Amended Count II of the Indict-

ment by striking therefrom the name “Gordon Keith

Kenny,” and substituting therefor the name “Gordon

Keith Denny,”’ (R. 5).

That thereafter on the 18th day of October, 1946,

Petitioner filed his Verified Motion to Dismiss the Amend-

ed Count II of the Indictment (R. 6); that this motion

was by the Court overruled on the 14th day of November,

1946, (R. 9) Thereafter on the 14th day of November,

1946, petitioner was arraigned on the Amended Count

II of the Indictment, and pleaded not guilty to both:

Counts I and II of the Indictment. (R. 9).

Subsequently on May 12, 13, 14, 1947, Jury Trial was

held on the within Indictment, and the Amended Count

IT thereof, and the jury on the 14 day of May, 1947, re-

turned a verdict of not guilty, on Count I, and guilty, on

the Amended Count IT. (R. 265)

That thereafter on the 24 day of May, 1947, petitioner

duly filed his Motion in Arrest of Judgment of the

Amended Count II of the Indictment (R. 266) which

motion was by the court overruled on May 26, 1947 (R.

269). Judgment on the verdict was entered on May 26,

1947 (R. 270).

a

Proceedings in Circuit Court of Appeals.

That Notice of Appeal was filed in the United States

District Court for the Northern District of Indiana on

June 2, 1947 (R. 271); and that thereafter on the 19 day

of September, 1947, transcript of the Record was filed in

United States Circuit Court of Appeals within the time

allowed therefor (R. 277); that briefs were filed within

the time allowed by the court, and that argument was

had in the Circuit Court of Appeals on the 20th day of

November, 1947; that the Circuit Court of Appeals handed

down its judgment and decision adverse to petitioner on

the 30th day of December, 1947. (R. 282)

That petitioner now files this his petition for a Writ

of Certiorari, together with printed Transcript of the

Record herein in this Honorable Court, within the time

allowed and provided by the Statutes of the United States,

Title 28, U.S.C.A. 344; The Federal Rules of Criminal

Procedure, Rule 60 (b); and Rule 38 of the Rules of the

Supreme Court of the United States, and that by reason of

the aforegoing, this Honorable Court has jurisdiction of

the subject matter herein presented.

Questions Presented.

I.

It is contended by petitioner, that, where by mistake

in drawing an indictment, a named person is charged as

the perpetrator of an offense, instead of the person who

has beer arrested and who has given bond, such error

is fatal and incurable, and the accusation is null and

void, as one upon which the apprehended person, not ac-

cused of perpetrating the crime, can be arraigned and

tried. ‘he petitioner in this case filed his verified motion

onan

for dismissal and abatement, on the ground that his name

is “Gordon Keith Denny” and not ‘‘Gordon Keith Kenny”,

the person named in the indictment. (Tr. 3) He urges

that the court erred in overruling this motion. (Tr. 5)

He insists that the court, on confession of error by the

United States Attorney, should have dismissed Count II

as to him, or ordered the indictment resubmitted to the

Grand Jury.

Il.

It is further contended that, in the courts of the United

States no part of the body of an indictment can be amend-

ed, after it has been found and presented by a Grand

Jury, either by order of the court or on the request of

the prosecuting attorney, without being resubmitted to

the Grand Jury, with the exception that surplusage may

be stricken on the motion of the defendant. The court in

this case, at the request of the United States Attorney

(Tr. 4) permitted the government to strike from the

second count of the indictment the name ‘Gordon Keith

Kenny’’ and to substitute therefor the name “Gordon

Keith Denny”. This ruling of the court, petitioner urges,

constitutes reversible error. (Tr. 5) Moreover, that

by physically amending Count IT of the Indictment, (Tr.

6) the United States Attorney destroyed its efficacy,

and deprived the trial court of jurisdiction, to the same

extent, “as if the count” had been dismissed or a ‘‘nolle

prosequi entered’’; that accordingly, the trial of the sub-

stantive crime charged in Amended Count IT, was based

and conducted on other than an indictment returned by a

Grand Jury, and the judgment based on the verdict of

the jury, on the Amended Count, is a nullity and of no

legal force or effect.

PD OME AOD OAL 40 ln + Ol

ren wee £

aa ee

III.

It is further contended, that to oblige defendant to

stand trial on an indictment which has been amended by

the United States Attorney, (Tr. 6) without re-sub-

mission to the Grand Jury, even though amended by order

of the court, is to require him to stand trial on a docu-

ment of the United States Attorney, and not an indict-

ment returned by a Grand Jury, and to accordingly de-

prive him of the rights granted him by the Fifth Amend-

ment to the Constitution of the United States.

VI.

Petitioner was charged in one count of the amended

indictment with having conspired with codefendants to

transport stolen goods, (Tr. 1) of the value of $10,000.00

in interstate commerce, knowing them to be stolen. On

this charge he was acquitted by the jury. (Tr. 266) In

the Amended second count of the indictment, (Tr. 6)

covering the single identical transaction, appellant was

charged, along with codefendants, with having committed

the substantive crime, of having caused stolen goods of

the value of $10,000.00 to be transported in interstate

commerce knowing them to be stolen. On the identical

evidence, introduced in proof of both counts, the jury

found defendant guilty of the substantive crime charged

in Count II. (Tr. 266) Appellant contends that the

verdicts are contradictory, that acquittal on the first count,

operates to acquit him on the second.

tes

REASONS RELIED ON FOR THE ALLOWANCE

OF THE WRIT.

IL.

Pertaining to the Amendment of the Indictment.

1. The Court of Appeals has decided on a federal

question in a way in probable conflict with the decisions

of this court.

a. In sanctioning the amendment of Count II of |

the Indictment, the Cireuit Court departed from the

principles announced in Ex Parte Bain, 121 U. S. 1;

30 L. Ed. 849; 7 S. Ct. 781 and the subsequent de-

cisions of this court, applying or reaffirming same.

(As set forth and discussed in the appending brief

(p. 22) |

2. That the decision of the Circuit Court of Appeals

here, conflicts with the decisions of other Circuit Courts

of Appeal on the same matter, that of the amendment

of the indictment. (As set forth and discussed in the

appending brief (p. 25).

3. That the Circuit Court of Appeals has decided an

important question of federal law which has not been,

but should be settled by this court.

a. The question presented for the first time to

this court, calls for a construction of Rule 7 (d) of

the Federal Rules of Criminal Procedure, relating

to the amendment of an indictment.

4, That the Circuit Court of Appeals has departed

from the accepted and usual course of judicial proceed-

ings, and has so far sanctioned such a departure by the

United States District Court, as to call for an exercise

of this court’s power of supervision.

a enn

5. That the case involves a question of the interpreta-

tion of provisions of the Fifth Amendment of the Consti-

tution of the United States, relating to indictments by

a grand jury, which if not decided upon and clarified by

this court will leave unsettled an important question of

Federal Criminal Procedure.

6. The fact that both judges in the concurring opinion

wrote separate opinions, and the third and remaining

circuit judge wrote a vigorous dissenting opinion on an

important federal question, involving the construction of

the Fifth Amendment, Rule 7 (d) of the Federal Rules

of Criminal Procedure, and the decision in Ex Parte Bain

121 U. S. 1, abundantly justifies a review of the decision

by this Court.

II.

Pertaining to Contradictory Verdicts.

1. The opinion in this case is in hopeless conflict with

the decision of this Court handed down January 5, 1948,

namely, Sealfon v. United States, ........ es Sree , 68

Sup. Ct. 237.

Wherefore your petitioner, referring to the attached

brief in support of the foregoing reasons for review,

respectfully prays that a Writ of Certiorari be issued

out of and under the Seal of this Honorable Court, direc-

ted to the United States Circuit Court of Appeals for the

Seventh Circuit, commanding that Court to certify and

send to this Court for its review and determination, on a

day certain to be named therein, a full and complete

transcript of the record and all proceedings in this case,

entitled on its docket: United States of America, Plain-

tiff Appellee v. Gordon Keith Denny, Defendant Appel-

lant, in Cause No. 9419, and that said judgment of the

United States Cireuit Court of Appeals for the Seventh

-—

a ee

Circuit may be reversed by this Honorable Court, and

that your petitioner may have such other and further

relief in the premises as to this Honorable Court may

seem meet and just.

Edward J. Leeney

James J. Clark

Attorneys for Petitioner.

— 13...

BRIEF IN SUPPORT OF PETITION.

Opinion Below.

No opinion was delivered in the District Court. The

decision and judgment of the Circuit Court of Appeals

was filed December 30, 1947, and appears at page 282

of the Record. It is not yet reported.

Jurisdiction.

The jurisdiction of this court is invoked under Title

28, U.S.C. Sec. 344 and Rule 38, of the Rules of the

Supreme Court of the United States.

Questions Presented.

1. Whether or not an indictment may be amended after

it has been returned by a Grand Jury and filed in a United

States District Court, by the action of the Judge of the

United States District Court or the United States At-

torney, acting pursuant to the authority given by the

Court, in the light of the Fifth Amendment to the Consti-

tution of the United States, Rule 7 (d) of the Rules of

Federal Criminal Procedure, the long-standing opinions

of this Court and the Cireuit Courts of Appeal, without

re-submission to the Grand Jury. (All of which more

fully appears in “Questions Presented’? appearing in

the body of this petition at page 7).

2. Whether a completely contradictory verdict in

which a defendant is acquitted on the charge of conspiring

to commit a substantive crime, and found guilty of the

substantive crime itself, on identical evidence, can be al-

nies Ri See

lowed to stand. (All of which more particularly pr

under ‘“‘Questions Presented”, IV, as contained in

within petition at page 8 thereof).

Statutes Involved.

Fifth Amendment to the Constitution of the United

States, Rule 7 (d) Federal Rules of Criminal Procedure,

and Title 18, U.S.C. Sec. 88; Title 18, U.S.C., Sec. 415.

a oe

SUMMARY OF ARGUMENT.

I.

After an indictment has been returned by a Grand J ury

and filed with the court, no change can be made in the

body of the indictment by order of the court, or by the

prosecuting attorney, without a re-submission of the

case to the Grand Jury.

1. The decisions of the Federal Courts are uniform in

holding that the body of an indictment, cannot be changed

or amended, by a court or a United States Attorney at the

direction of the court, after it has been returned and filed

with the Court.

Ex Parte Bain, 121 U. S. 1, 8, 10, 13; 30 L. Ed.

849; 7 Sup. Ct. 781.

Edgerton v. United States, 9 0.0.A.-1944) 143

F, 2d 697, 698, 699.

Garrett v. United States, (5 0.0.A. 1927) 17 F.

2d 479, 480.

Dodge v. United States, (9 C.C.A. 1919) 258 Fed.

300, 305.

DeLnca v. United States, (2 C.C.A. 1924) 299 Fed.

741, 745.

Stewart v. United States, (9 C.C.A. 1926) 12 F.

2d 524.

United States v. Holtz, (Dist. Ct. N. Y. 1923)

288 F. 81, 82.

United States v. Krepper, (3 C.C.A. 1946) 159 F.

2d 958, 963, 969, 970, 971.

Goto v. Lane, 265 U. S. 393, 402; 68 L. Ed. 1074;

44 S. Ct. 525.

Salinger v. United States, 272 U. 8. 542, 549;

71 L. Ed. 398; 47 S. Ct. 173.

=

Ford v. United States, 273 U. S. 593, 602; 71 L.

Ed. 793; 47 S. Ct. 531.

United States v. Norris, 281 U. S. 619, 622; 74

L. Ed. 1076; 50 S. Ct. 424.

Roche v. Evaporated Milk Assc. 319 U. 8S. 21, 26;

87 L. Ed. 1185; 63 S. Ct. 938.

Muncy v. United States, (C.C.A. 4.) 289 Fed.

780, 781.

Johnson v. United States, (C.C.A. 5, 1942) 124

F. 2d 101, 102.

Rawlson v. Cox, (C.C.A. 5, 1942) 123 F. 2d 196.

2. The common law rule, prohibiting the amendment of

an indictment has been qualified by Rule 7 (d) of the Rules

of Criminal Procedure, for the District Courts of the United

States, promulgated by the Supreme Court of the United

States, and in effect March 21, 1946, to the extent that sur-

plusage may be stricken on the motion of the defendant and

not otherwise.

(a) Rule 7 must be considered in its entirety. Rule

7 (d) expressly provides for the striking of surplusage

from the indictment or information only on motion of

the defendant; 7 (e) expressly provides for the amend-

ment of an information. It nowhere undertakes to

authorize the amendment of an indictment.

(b) Being in derogation of the common law, as de-

clared in Ex parte Rain, the rule must be strictly con-

strued; it cannot be extended by implication beyond its

express terms, nor change the common law beyond what

is expressly declared.

59 C. J. 1124-1127, Sec. 665.

59 C. J. 1129-1130, See. 669.

50 Am. Jur. 429, Sec. 405.

50 Am, Jur. 425, Sec. 402.

rae

ont Si

(c) Inasmuch as Rule 7 (d) provides for the striking

of surplusage from an indictment, on motion of the de-

fendant, by implication it prohibits: (1) the striking of

any matter, other than surplusage, by any party, on mo-

tion or otherwise; (2) the striking of any matter, in-

cluding surplusage, except on motion of the defendant.

This is in accordance with the principle of,

“Expressio unis est exclusio alterius”

59 C. J. 984, See. 582.

25 C. J. 220.

Paso Robles Mercantile Co. v. Com’r of Int. Rev.,

(9 C.C.A. 1929) 33 F. (2) 653, 654.

Raleigh and G. R. Co. v. Reid, 80 U. 8. 269, 20

L. Ed. 570.

Knapp-Monarch Co. v. Com’r Int. Rev., 139 F.

2d 863, 864.

I.

An amended indictment, is no indictment within the pur-

view of the Fifth Amendment to the Constitution of the

United States, providing that ‘‘No person shall be held

to answer for a capital, or otherwise infamous crime,

unless on presentment or indictment of a Grand J ury

* ee)

—

Il.

Where there is a verdict of acquittal in one count, of an

indictment, and conviction on another count the verdict

of conviction should not be allowed to stand unless sup.

ported by evidence other than that adduced in support

of the count on which there was an acquittal. A verdict

of not guilty on the first count, where the only fact the

jury had to determine was the presence or absence of

‘‘guilty knowledge’’, should of necessity relieve accused

from liability on the second count, where, on the iden-

tical evidence, the only element of the crime to be found

by the jury was the existence of ‘‘guilty knowledge’’.

Accused in the same trial cannot be held not to have

had ‘‘guilty knowledge’’, that certain described goods

were stolen, as alleged in one count of the indictment, :

and at the same time, on another count, that he did have

‘‘guilty knowledge’’ that the identical merchandise was

stolen. :

1. The general statement in a decision to the effect, that,

“consistency in a verdict is not necessary,” “is to be con-

strued with reference to the question actually under con-

sideration, and should not be extended beyond for any pur-

pose in another and different case.”

Cohens v. Virginia, 6 Wheat. 264, 399; 19 U. §.

264.

Wright v. Nagle, 101 U. S. 791, 796; 25 L. Ed. 921.

Humphreys, Executor v. United States, 295 U. 5S.

602; 627; 55 S. Ct. 869; 79 L. Ed. 1611.

Harriman v. Northern Securities Co., 197 U. S.

244, 291; 25 S. Ct. 493; 49 L. Ed. 532.

Wright v. United States, 302 U. S. 583, 593; 58 S.

Ct. 395, 82 L. Ed. 439.

O’Donoughue v. United States, 289 U. S. 516, 550;

53 S. Ct. 740; 77 L. Ed. 1356.

Daviess v. Fairborn, 3 How 636.

Safe Deposit € T. Co. v. Virginia, 280 U. S. 83,

99; 50 S. Ct. 59; 74 L. Ed. 180.

=

Mutual Benefit Health € Accident Assn. v. Bow-

man, 99 F. 2d 856, 858.

Amer. Surety Co. v. United States, 239 Fed. 680,

684.

20 Federal Digest Courts, Key No. 107, pp. 427,

432.

20 Federal Digest Courts, Key No. 92, pp. 362, 366.

2. In the majority of the opinions announcing that in-

consistence in a verdict does not void the judgment, it is also

expressly stated that the case considered presented no in-

consistency in the verdict. The generality announced is

therefore clear obiter dicta and should not bind an accused

in a case where a clear contradiction is evident. The fol-

lowing cases fall into this category:

Dunn v. United States, (1932) 284 U. 8. 390, 392;

76 L. Ed. 356; 52 8. Ct. 189.

United States v. Hare, (1946) 153 F. 2d 816, 819.

United States v. Meltzer, (1938) 100 F. 2d 739, 741.

United States v. General Motors Corp. (1941),

121 F. 2d 376, 411.

Stein v. United States (1946), 153 F. 2d 737, 744.

Audett v. United States (1942), 132 Fed. 528, 530.

Foshay v. United States (1933), 68 F. 2d 205, 217.

3. Prior to obiter dicta in the Dunn case (Dunn v. United

States, 287 U. S. 390, supra), advancing the proposition that,

“consistency in a verdict is unnecessary,” the Circuit Courts

of Appeal for the Third and Eighth Circuits, affirmatively

held that “a conviction will not be allowed to stand uniess the

verdict of conviction is supported by evidence other than the

facts pleaded in support of the counis upon which acquittal

has been had.” These decisions present the better reasoning

and the generality above quoted should be qualified to con-

form with them, and applied to this case.

Speiller v. United States, 1929) 31 F. 2d 682, 684.

——

— 20— |

Boyle v. United States, 1927) 22 F. 2d 547, 548.

Peru v. United States, 4 F. 2nd 881, 884.

Murphy v. United States, 18 F. 2d 509, 510-512.

John Hohenadel Co. v. United States, 295 Fed.

489, 490.

Rosenthal v. U. S., 276 Fed. 714.

4. The record discloses that the jury’s verdict on the con-

spiracy count of the indictment was a determi7ation favor-

able of the facts essential to conviction on the substantive

count. The only element left for the jury’s determination on

both counts was “guilty knowledge” or lack of it, for all

other elements were admitted. Having once found petitioner

innocent on the conspiracy count, the matter became res

judicata, and the jury was precluded from finding him guilty

on the substantive count.

Sealfon v. United States, 68 Sup. Ct. 237.

—_

aan

I. & II.

Indictment cannot be amended, either at common law or

under rules of criminal procedure.

Amendment of an indictment violates the fifth amendment

of the Constitution.

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury * * *.”

What is the applicability of these words of the Fifth

Amendment to the Constitution, to the case at hand?

1. The record discloses that the second count of the in-

dictment was physically amended, by the United States At-

torney pursuant to authority granted by the court, not only

by the striking out of a portion of its context, but by the

actual addition of new matter (Tr. p. 6).

“The United States Attorney amended Count IT of

said indictment by striking therefrom the name ‘Gor-

don Keith Kenny,’ and inserting in the place and

stead thereof the name ‘Gordon Keith Denny’ ”’ (Tr.

p. 6).

This action, appellant most emphatically contends, was

not only a flagrant violation of the Fifth Amendment,

but served to nullify this Count IT, and convert it into

nothing more than an anonymous document of the Dis-

trict Attorney.

No principle seems to have been better established

in the English Common law, prior to the American Revo-

lution, than that an indictment once returned by a Grand

Jury under oath, was not subject to change by either the

court or prosecuting attorney. (Rez. v. Wilkes, 4 Burr.

2527, tried in 1770) and the matter seems to have been

a

forever set at rest in this country, by the decision of this

Court, in 1886, in the celebrated case of,

Ex Parte Bain, 121 U. S. 113; 7 Sup. Ct. 781, 30

L. Ed. 849.

In the conclusion of this most scholarly opinion by Jus.

tice Miller, it is unequivocally announced:

“We have no difficulty in holding that the indict-

ment on which he was tried was no indictment of a

grand jury. The decisions which we have already re-

ferred to, as well as sound principle, require us to

hold that after the indictment was changed it was no

longer the indictment of the grand jury who presented

it. Any other doctrine would place the rights of the

citizen whick were intended to be protected by the

constitutional provisions, at the mercy or control of

the court or prosecuting attorney; for, if it be once

held that changes can be made by the consent or the

order of the court in the body of the indictment as

presented by the grand jury, and the prisoner can be

called upon to answer to the indictment as thus

changed, the restriction which the Constitution places

upon the power of the court, in regard to the pre-

requisite of an indictment, in reality no longer exists.

It is of no avail, under such circumstances, to say

that the court still has jurisdiction of the person and

of the crime; for, though it has possession of the

person, and would have jurisdiction of the crime, if it

were properly presented by indictment, the jurisdic-

tion of the offense is gone, and the court has no right

to proceed any further in the progress of the case for

want of an indictment. If there is nothing before the

court which the prisoner, im the language of the Con-

stitution, can be ‘held to answer’, he is then entitled

to be discharged so far as the offense originally pre-

sented to ihe court by the indictment is concerned.

The power of the court to proceed to try the prisoner

is as much arrested as if the indictment had been dis-

missed or a nolle prosequi had been entered. There

iii is

was nothing before the court on which it could hear

evidence or pronounce sentence’’ (p. 13). (Petitioners

italics)

With the above language in mind, what is its applica-

tion to the case under consideration, wherein the govern-

ment undertook to change the name of the person charged,

by actual alteration of the Count. Here again we have no

difficulty in asvertaining the view of the court. Quoting

with approval from the case of Commonwealth v. Drew,

3 Cush. 279, the court on page 8 declares:

“Where it is found that there is some mistake in

an indictment, as a wrong name or addition, or the

like, and the grand jury can be again appealed to, as

there can be no amendment of an indictment by the

court, the proper course is for the grand jury to

return a new indictment, voiding the defects of the ,

first.” (Appellant’s italics) (8).

From the principles announced in the Bain case there

has been no deviation; as stated in the well considered

opinion of:

Edgerton v. United States (9 CCA, 1944), 143 F.

2d 697, 698, 699.

“The only apparent qualification to the principle of

Ex Parte Bain consistently accepted is that to vitiate

an indictment the portion deleted must come from the

body of the count * * *” (citations). (p. 699.)

In the above case the court probably went further than

any of the preceding opinions, in safeguarding if not en-

larging upon the doctrine. In that case there was no

physical striking of a portion of the indictment. Upon

submission of the case to the jury after the government

had rested and the defendants had declined to introduce

evidence, the court, as the opinion recites, instructed the

jury as follows:

“T have already told you that I would strike out

il oui

a certain portion of the allegation which is in the

indictment, being the first paragraph thereof of page

5. I strike out that portion which says: ‘* * * there-

tofore approved as legal investments by the Superin-

tendent of Banks or the Commissioner of Corporations

of the State of California * * *.’ And in a later

reference to this portion of the indictment the jury

was ‘* * * instructed to disregard’ the stricken words

and to read the allegation as ‘That the defendants

* * * did represent to the persons intended to be de-

frauded that the First Security Deposit Corporation

would and did loan or advance money only upon

security or properties; whereas in truth and in fact,

as the defendants * * * well knew, large sums of

money * * * were loaned * * * without any securi-

ty * * *.’ It was the opinion of the trial judge that

the portion deleted was surplusage and should be

stricken for want of proof.” (698.)

Even though there was no physical striking, as noted

above, the U. S. Circuit Court of Appeals for the 9th

Circuit, here enosidered the above actions of the trial

court as tantamount to a physical striking and well within

the prohibitions announced in the Bain case.

This Honorable Court has had occasion to advert to the

doctrine announced in the Baim case, in at least five

opinions, namely:

(1923) Goto v. Lane, 265 U. S. 393, 402; 68 L.

Ed. 1070; 44 Sup. Ct. 525.

(1926) Salinger v. United States, 272 U. S. 542,

549; 71 L. Ed. 398, 47 Sup Ct. 173.

(1926) Ford v. United States, 273 U. S. 594, 602;

71 L. Ed. 793; 47 Sup. Ct. 531.

(1929) United States v. Norris, 281 U. S. 619,

622; 74 L. Ed. 1076; 50 Sup. Ct. 424.

(1942) Roche v. Evaporated Milk Assc., 319 U.S.

21, 26; 87 L. Ed. 1185; 63 Sup. Ct. 938.

|

While in each of these it was held that the prohibitions

laid down in the Baim case did not apply, yet in each, it

did either expressly or impliedly, reaffirm the soundness

of the principles there established.

In a brief of this character it would be presumptuous

to attempt an exhaustive review of the opinions handed

down by the various courts, construing, qualifying and

characterizing the doctrine we have been considering as

announced in the Bain case. A brief reference to a few,

however, is considered imperative. In

Dodge v. United States, 258 Fed. 300, 305

the Circuit Court of Appeals, for the Second Circuit, held

in 1919, that the striking of the word “mutiny” from an

indictment, even though without objection constituted re-

versible error; the theory of estoppel or waiver was not

even considered. The court said:

“At the close of the case counsel for the govern-

ment moved to strike out as surplusage a portion of

the first paragraph of the first count of the indict-

ment and the word “mutiny’’ from the first paragraph

of the second count. Counsel for defendant at once

said ‘No objection’. The court granted the motion.

This is now assigned as error. That it was error of

the most serious kind is not to be doubted. The rule

is almost universally recognized, both in this country

and in England, that an indictment cannot be amended

by the court, and that an attempt to do so is fatal to

a verdict upon the count.

The Supreme Court in Ex parte Bain * * * de.

clared that it was beyond question that in the English

Courts indictments could not be amended, and that

jury, unless by virtue of a statute.” (Appellant’s

italics.) (305.)

a

Again in 1927, the 5th Circuit Court of Appeals, in re-

versing a case because of an amendment to an indict-

ment, stated in

Garrett v. United States, 17 F. 2d 479, 480,

‘In addition to entering a formal order setting out

the parts to be stricken, the judge wrote in the margin

of the indictment memoranda indicating what was to

be erased and a pencil was run through the words

of the indictment * * * the action of the court re-

sulted in amending the indictment that could not be

done legally and amounts to reversible error Ex parte

Bain * * *.” (Appellant’s italics.) (p. 480.)

The Second Circuit, in 1929, again had occasion to apply

the principle of the Bain decision in a case wherein court

had permitted the consolidation of two indictments.

In criticizing this procedure and reversing the judgment,

the court in

De Luca v. United States, 299 Fed. 741, 745,

among other things announced:

“* * * Both indictments charge crimes punishable

by imprisonment for more than one year * * * Neither

the court nor the government’s attorney had the

power to add anything to the indictment or to strike

anything from it. Ex parte Bain * * *. The Fifth

Amendment to the Constitution requires that the ac-

cusation should be charged in the indictment as found

by the grand jury. The only way it could be changed

would be by resubmission to the grand jury.’’ (745.)

(Appellant’s italics.)

In keeping with the universal application of the rule,

the 9th Cireuit Court of Appeals, in 1926, adopted and

applied the principle of the Bain case, in,

Stewart v. United States, 12 F. 2d 524.

ili.

.

Preceding a long quotation from the Bain case, the

court said:

“At the commencement of the trial, by consent of

counsel for all parties, the court struck from the body

of counts 2 and 3 of the indictment, as surplusage,

the words, ‘feloniously and,’ in one place, and the

words, ‘and feloniously’ in another. This action of

the court is now assigned as error. The assignment

is well taken. In ex parte Bain * * * the trial court

struck six words from the indictment, as surplusage,

and in discharging petitioner on a writ of habeas

corpus the court said: (here follows long quotation

from the Bain case). (Appellant’s italics.) (524.)

2. Application of Rule 7 (d) of the Federal Rules of

Criminal Procedure,

Let us now consider in what manner this case is con-

trolled or effected by Rule 7(d) of the Rules of Criminal

Procedure as adopted by the Supreme Court. It is be-

lieved that this is the first case in which the appellate tri-

bunal has been called upon to interpret and apply Rule

7(d), since its adoption.

(a) The context of Rule 7 (d) is simple, and its meaning

is clear and unequivocal.

“(d) Surplusage. The court on motion of the de-

fendant may strike surplusage from the Indictment or

information’’ (appellant’s italics ).

How the meaning of this language is subject to doubt, it is

difficult to see.

In the language of the Advisory Committee on the Rules

of Criminal Procedure which drafted it, it

“introduces a means of protecting the defendant

against immaterial or irrelevant allegations in an in-

_

dictment or information, which may, however, be

prejudicial. The authority of the court to strike out

surplusage is to be limited to doing so on defendant’s

motion in the light of the rule that the guaranty of

indictment by a grand jury implies that an indictment

may not be amended, Ex parte Bain, 121 U. S. 1.”

(Rules of Criminal Procedure, Senate Document 175,

page 17. Gov’t. Printing Off. 1946, No. 734268.)

(Appellant’s italics.)

The true meaning of Rule 7(d) becomes clear when the

succeeding paragraph or section, (e) of the Rule, is con-

sidered. There it is provided:

“‘(e) The court may permit an imformation to be

amended at any time before verdict or finding if no

additional or different offense is charged and if sub-

stantial rights of the defendant are not prejudiced.”

(Appellant’s italics.)

Then follows, in the official copy of the rules, Senate

Document No. 175 (G. P. O. 734268), this editorial com-

ment by the Advisory Committee (p. 17):

_ “This rule continues the existing law that, unlike

an indictment, an information may be amended, Mun-

cy v. United States, 289 Fed. 780 (C. C. A. 4th).”

(Appellant’s italics.)

That these rules have been the force and effect of law

certainly can be denied by no one; for all practicable pur-

poses they are the same as though they had been enacted

by Congress, and must be considered in the same cate-

gory with the statutory procedural provisions of the Fed-

eral Criminal Law. The fundamental rules of statutory

construction therefore apply to them. Moreover, the opin-

ions and comments of the Advisory Committee which

drafted them are entitled to weight and consideration.

——

a, a

(b) That Rule 7 is in many respects in derogation of the

common law is apparent; the principle of statutory construc-

tion, as they relate to the issue now under consideration,

must therefore be consulted.

Appellant’s understanding of the rules of construction

applicable here are extremely well expressed in 59 Corpus

Juris at 1124-1127 (See. 665), in the following language:

*“All statutes in derogation of the common law, or

common rights, are to be construed strictly, and as an

implied abrogation of the common law is not favored

these statutes will not be construed to change the

common law beyond what is expressly declared * * *”

‘“‘Except there be a change in the policy of the law,

such statute will not be extended beyond their pre-

cise terms or obvious import, * * *, The courts in

construing these statutes, have held that the common

law will not be changed by doubtful implication, nor

overturned except by clear and unambiguous language,

and will be no further abrogated than the clear im-

port of the language requires * * *”

“The courts will not presume that a change was

intended by the legislature, unless the language used

clearly indicates such intention, and if the statute

makes an innovation in the common law, it will be

presumed that the legislature did not intend to make

any innovation further than required by the mischief

to be remedied. The rule to be applied is that they

must not be deemed to change the common law or

common law rights unless it appears by express words

or plain implication that it was the intention of the

legislature to do so.”’ (50 C. J. 1124-1127, See. 665.)

Regarding procedural statutes in particular, 59 Corpus

Juris continues at page 1129 (Section 669) :

“But statutes which take away, change, or diminish

fundamental rights, statutory remedies for rights un-

ee

known at common law, and statutes which provide

new and extraordinary remedies, must be construed

strictly, both as to the cases embraced in their terms

and as to the methods to be pursued.”

(c) The principle of “expressio unis est exclusio alterius”

applies with equal force:

‘In accordance with the maxim ‘expressio unis est

exclusio alterius,’’ where a statute enumerates the

things upon which it is to operate, it is to be construed

as excluding from its effect all those not expressly

mentioned; and where it directs the performance of

certain things in a particular manner, or by a par.

ticular person, it implies that it shall not be done

otherwise nor by a different person.” 59 C. J. 984

(See. 582).

If the Advisory Committee, better than anyone else,

knew the meaning of the language of Rule 7, and what was

intended to be accomplished thereby, certainly we cannot

lightly pass over their citation of:

Muncy v. United States, 289 Fed. 780, 781 (C. C.

A. 4th),

where it is said:

“As to the first point, we need only observe that

it is too well settled to require citation of authority that

an information unlike an indictment, may be amended

by leave of court, even after motion to quash, de

murrer, or plea (22 Cyc. p. 436, and cases there cited),

for, as Lord Mansfield observes in Rex v. Wilkes, 4

Burr. 3567:

“ «There is a great difference between amending in-

dictments and informations. Indictments are found

upon oath of a jury, and ought only to be amended

by themselves; but informations are as declarations

in the king’s suit, an officer of the crown has the right

of framing them originally, and may, with leave,

— 3] —

amend in like manner as any plaintiff may do.’”

(Appellant’s italies) (781).

Petitioner trusts he has made manifest that Rule 7 qual-

ifies the common law to the extent that it permits the strik-

ing of surplusage from an indictment, on motion of the

defendant, and no more; that no valid theory of law can

be found which would permit a court, or a United States

Attorney, acting pursuant to a court order, to reach down

into the body of an indictment, remove the name of the

defendant charged by the Grand Jury with the commis-

sion of the crime, and replace it with another. The United

States Attorney’s petition (Tr. 4) states what was done

and what was intended to be done in his office. As to the

action of the Grand Jury and its intentions the petition

is purely speculative. The United States Attorney did

not know and could not have known what transpired in the

secret deliberations of that body. What is known is that

the Grand Jury returned and filed with the court its in-

dictment under oath charging in Court II, not the ap-

pellant, but one Gordon Keith Kenny, with the commission

of an infamous crime within the meaning of the Fifth

Amendment to the Constitution.

But one conclusion, appellant submits, can be reached

and that is, when the trial court permitted the amendment

of Count II, and the United States Attorney actually

amended it, by striking the name ‘‘Gordon Keith Kenny,

and substituting the name, Gordon Keith Denny, the ex-

Press provisions of the Fifth Amendment of the Consti-

tution, Rule 7 of the Rules of Criminal Procedure, and

the long established principles of the common law were

singularly violated, and to allow a conviction on such an

Amended Indictment to stand would constitute not only

& gross violation of appellant’s guaranteed constitutional

—_ we

rights, but a serious threat to the very fundamentals of

constitutional government.

To again employ the language of the Bain case,

“Tf it lies within the province of a court to change

the charging part of an indictment to suit its own

motions of what it ought to have been, or what the

grand jury would probably have made it if their at-

tention had been called to suggested changes, the

great importance which the common law attaches to

an indictment by a grand jury, as a prerequisite to a

prisoner’s trial for a crime, and without which the

Constitution says “no person shall be held to answer,”

may be frittered away until its value is almost de-

stroyed” (p. 10).

ITI.

Contradictory Verdict.

Petitioner is not unmindful of the general proposition

advanced by the Supreme Court in the case of,

Dunn v. United States, 284 U. S. 390, 392; 52

Sup. Ct. 189; 76 L. Ed. 356; 80 A. L. R. 161,

nor of the several cases of the Circuit Courts of Appeal,

following this decision, and applying the broad generality

there set forth, namely, that ‘‘Consistency in a verdict is

not necessary.”

1. Because of the fact, however, that he was convicted

on an amended count of an indictment, in the original of

which he was not mentioned, and because of the vigorous

and cogent dissenting opinion of Justice Butler in the

Dunn case, and because there is an equally strong, if not

stronger principle of law, namely, that

“the language of the court in the opinion is to be con-

strued with reference to the question actually wnder

consideration, and should not be extended beyond for

oo

a ae

any purpose in another and different case.’’ (Wright

v. Nagle, 101 U. S. 791, 796; 25 L. Ed. 921 (1879.))

(Appellant’s italics.)

and because he feels that the general principles announced

in the recent case of

Sealfon v. United States, ........ ere ; 68 Sup.

Ct. 237

are strikingly applicable to the situation presented in his

case, petitioner feels obliged, in justice to himself and in

fairness to this court, to set forth his position.

The pertinent part of the statute upon which the

amended Count II of the indictment is drawn—Section

415, Title 18, U. S. C. A—is in context as follows,

“Whoever shall transport or cause to be trans-

ported in interstate or foreign commerce any goods,

wares, merchandise, securities, or money, of the value

of $5,000 or more theretofore stolen, feloniously con-

verted or taken feloniously by fraud or with intent

to steal or purloin, knowing the same to have been

stolen * * * shall be punished by fine of not more

than $10,000 or by i prisonment for not more than

ten years, or both, * * *”

An analysis of this statute shows that there are five

essential elements of the crime, namely: (1) “Causing,”

which of course, includes aiding and abetting, and pre-

supposes an understanding or agreement; (2) to be trans-

ported in interstate commerce; (3) stolen goods; (4) of

the value of $5,000 or more; (5) with the knowledge that

such goods were stolen property. The amended Count IT

of the indictment includes all five elements.

Count I of the indictment is drawn under Title 18, See.

88, U.S. C. A., the general conspiracy statute. The crime

there defined, likewise contains five essential elements,

=<

namely: (1) an agreement or understanding between two

or more parties; (2) to transport in interstate commerce;

(3) stolen goods; (4) of the value of $5,000 or more; (5)

knowing that the goods were stolen property.

The evidence on which appellant was acquitted on the

first Count (conspiracy), and upon which he was convicted

in the amended second count (the substantive crime) is

identical, the two separate crimes charged, like a coin,

figuratively speaking, being but opposite sides, of the one

transaction.

Taking up these charges separately let us consider the

evidence adduced, on the several elements, separately and

independently. As to the proof of the elements of the

erime charged in Count I—the alleged conspiracy—the

record reveals the following: With regard to (1) the

agreement or understanding there is no dispute. Appel-

lant narrated at length that he agreed with co-defendant

Brown, in Chicago, to try to find a buyer for a truck load

of butter, beef, and hams, in Brown’s possession (Tr.

225); that he would call Brown in Chicago when he found

a buyer (Tr. 226);

That he called a merchant in Hammond, regarding the

sale of “butter, canned hams, and beef’’ (Tr. 228) in the

presence of codefendants Brown and Wishniewski, at

their request and later he arranged to deliver the meat

to one Carl Yellon, owner of the Columbia Packing Com-

pany in Hammond, Indiana (Tr. 126, 231). In fact he

freely admitted the agreement or arrangement (Tr. 224-

232), and overt acts 1, and 2 of Count I of the indictment

(Tr. 1) were amply proved, without objection by appellant

(Tr. 227, 171, 228, 173-174, 92). On this element of the

crime charged there was no controversy and the jury had

nothing to pass upon.

ne 7

—_ Se

(2) Respecting the transportation in interstate com-

merce (element 2) again the jury had nothing to decide,

appellant fully admitted that he went to Chicago, Illinois,

and aided in convoying the truck load of meat to Ham-

mond, Indiana (Tr. 233-234).

(3) That the meat was stolen was proved by co-defend-

ants McGhee and McGhee (Tr. 70 and 29), and was un-

controverted by appellant; this third element being ad-

mitted, here again, there was nothing for the jury to de-

termine.

(4) As to the fourth element, the value of the meat

involved in the transaction, it was stipulated that it was

of the value of $7,000 (Tr. 22). Accordingly in this ele-

ment the jury had nothing to decide.

(5) The only remaining element of the crime as

charged in the indictment is that of guilty knowledge on

the part of appellant. Nothing could be clearer than that

the only matter which the jury had to determine was

whether or not appellant knew the merchandise was

stolen.

By finding appellant not guilty on Count I of the in-

dictment, and this was in point of time, the first verdict

submitted (Rec. 265), the jury conclusively established

that the evidence was not sufficent to prove ‘guilty knowl-

edge,” on the part of appellant, for that is all they had

to decide,

Coming now to Amended Count II of the indictment,

charging the substantive crime, let the evidence on the

essential elements of this crime as set out above be con-

sidered, and it is discovered that the elements of (1)

causing the, (2) transportation in interstate commerce,

(3) of merchandise, (4) of the value of $5,000 or more, are

wiv tBine

either all proved without objection, or controversy, or are

admitted (supra p. 34 and 35). Accordingly there was

again nothing for the jury to decide on this count, but the

question as to whether appellant knew the meat in ques-

tion was stolen.

But the jury had already found that the appellant did

not know that the goods were stolen in its verdict on

Count I. Under what principles of logic or reason could

it be said by the jury, as it did, in the next breath, on

the same evidence, and in the same transaction, that the

defendant did know the merchandise in question was stolen

property? How can these repugnant and contradictory

verdicts be reconciled in any consistent system of juris-

prudence, or be permitted to stand by an appellate court!

The only answer to be found is that appearing in the dicta

of the Supreme Court in the Dunn case, and the cases fol-

lowing it.

Before considering the propositions of law advanced by

Justice Holmes, speaking for the Supreme Court, atten-

tion should be given to the facts to which the court was

required to apply the principle announced in,

Dunn v. United States (1932), 284 U.S. 390, 392;

76 L. Ed. 356; 52 S. Ct. 189.

The appellant there was indicted on three counts:

‘*first for maintaining a common nuisance by keeping for

sale at a specified place intoxicating liquor; second, for un-

lawful possession of intoxicating liquor; and third, for the

unlawful sale of such liquor. The jury acquitted him on

the second and third count and found him guilty on the

first.”’ The appellant insisted that the verdict in the

second and third counts is inconsistent with that upon

the first and that ‘‘for this reason he is entitled to be

discharged.’’

—

The evidence as reviewed in the opinion, discloses:

‘‘The defendant owned the establishment where the

alleged sale took place. It consisted of a front room

where fishing tackle, sporting goods, cigars and soft

drinks were sold, and a larger room in the rear with

pool tables and a bar. Two prohibition agents and

two unknown men walked in and ordered from the de-

fendant three glasses of whiskey and one of beer and

were served without further conversation. A little

later two more drinks were called for and furnished.

The whiskey was served in ordinary whiskey glasses

from underneath the bar and the money paid for it,

twenty-five cents a glass, was put into a cash register

behind the bar.’’ (392.)

The court then proceeded to announce that the verdicts

were “not necessarily inconsistent,’”’ and reasoned thus:

“The testimony, if believed, showed a reguar

course of business, which mantfestly was continuous,

Fisher v. United States (C. C. A. 4th), 32 F. (2d)

602, 604, and warranted a verdict of guilty on the

nuisance count. The defendant gave evidence that he

was elsewhere at the time of the alleged sale and did

not make it. He contends that the verdict is in-

consistent, since it negatives possession and affirms

the nuisance, the proof of the commission of both

alleged offenses consisting of identical evidence. The

Government says that even though the jury seems to

have believed that the defendant was elsewhere at

the time of the alleged sale, and did not make it, the

verdict is not necessarily inconsistent, for some third

person, with defendant’s knowledge, may have been

doing business on the premises, and if so they were

a nuisance, and the defendant was guilty although he

neither possessed nor sold intoxicating liquors upon

them; that whereas the Government’s witnesses may

have been mistaken in saying that the defendant sold,

they may have been right to the extent that someone

did and if that be true the defendant’s knowledge

cialis

could be inferred, this being his place of business and

he being habitually present there. It is further ar.

gued that it may be inferred that he received the

money coming from the sale, and that he knowingly

abetted the seller in the acts that created the nui-

sance on the premises that the defendant controlled.”

(392) (Appellant’s italics).

The facts in this case are remarkably similar to those

presented in the case of,

Carrignan v. United States, 290 Fed. 189, 190

(1923) ;

and the reasoning of the court as expressed by Judge

Evans, in the opinion in that case, is strikingly parallel

to that of Justice Holmes in the Dunn case. There it is

said:

‘‘Nor is the case similar to that of Rosenthal v.

United States (C. C. A.), 276 Fed. 714. In that case

the defendant was charged with having purchased and

received stolen property with knowledge that it was

stolen, and also charged by another count with having

the same property in his possession, with the knowl

edge, the evidence showing that the two counts re

lated to the same transaction. The second offense

charged but a part of the first offense and the sep

arate convictions for the two alleged offenses could

not have been sustained. It was therefore held that

a verdict of not guilty in the first cownt necessarily

relieved defendant from liability on the second count.”

See also Murphy v. United States (C. C. A.), 285 Fed.

801.

‘‘In the present case plaintiff in error could have

been convicted and sentenced upon both counts of the

indictment. He could have been found guilty of either

offense without having been quilty of the other. To

illustrate: The jury might have found that the evi-

dence showed the liquor sold the government witnesses

was not intoxicating within the definition of the act,

— Wa

and yet, in view of the intoxicated condition of other

individuals in the barroom, coupled with the fact that

liquor was sold and delivered to them while the govern-

ment witness was present, have also found that the

premises were being conducted as a nuisance.’’ (190)

(Appellant’s italics).

Thus it is seen that in neither of the above cases was

there an inconsistent verdict, the courts holding that there

was ample evidence to sustain the nuisance count, in

each, regardless of the charges contained in the other

counts. Certainly it cannot be said that these cases belong

in the same category with the one now being considered;

the present case involves almost the precise question as

that considered in the Rosenthal case, and the characteriza-

tion given that case by J udge Evans, as above set forth

should here apply.

Appellant’s argument resolves itself into this proposi-

tion, that inasmuch as the above opinions manifestly dis-

close that the verdicts were not contradictory, the propo-

sition there announced that “‘consistency in a verdict is

not necessary,’ has no application, nor is it a binding

tenet of the law in this case, further that the broad and

unqualified generality set forth could not be controlling

here, for the reason that it must be “‘construed in the

light of the issues presented and considered,’’ in the case

in which it is employed, and “should not be extended

beyond that for any purpose of authority in another and

different case.’’ Mutual Benefit Health and Accident Ass’n

v. Bowman, 99 Fed. 2d 856, 858 (C. C. A. 8) (1938):

To sustain this proposition Petitioner relies on an opin-

ion of no less dignity or weight than that handed down

by Chief Justice Marshall in the case of

Cohens v. Virginia, 6 Wheat. 264, 399; 19 U. S. 264.

—

Qualifying a general proposition of law appearing in the

equally celebrated case of Marbury v. Madison, 1 Cranch

137, the opinion of which also came from the pen of the

great Chief Justice Marshall, the Cohens decision estab-

lishes the principle, here appealed to, in these words:

‘‘Tt is a maxim, not to be disregarded, that general

expressions are to be taken im connection with the

case in which the expressions are used. If they go

beyond the case, they may be respected, but ought not

to control the judgment in a subsequent suit, when the

very point is presented for decision. The reason for

the maxim is obvious. The question actually before

the court is investigated with care and considered in

its full extent. Other principles which may serve to

illustrate it are considered in their relation to the

ease decided, but their possible bearing on all cases

is seldom investigated.” (399) (Appellant’s italics).

This statement of the law has been repeatedly applied

and quoted in numerous subsequent opinions of the Su-

preme Court and the Circuit Courts of Appeal, it appears

verbatim in,

Humphreys Executor v. United States (1935), 295

U.S. 602, 627; 55 S. Ct. 869; 79 L. Ed. 1611.

O’Donoughue v. United States, (1933), 289 U. S$.

516, 550, 593; 53 S. Ct. 740; 77 L. Ed. 1356.

Wright v. United States (1938), 302 U. S. 583,

593; 58 S. Ct. 395; 82 L. Ed. 439.

(2) In at least three cases Circuit Courts have followed

the Dunn case and announced approval of the general

proposition of law there announced. It is to be noted,

however, that the facts in these cases are entirely differ-

ent from the case at bar, and in two instances, the court

expressly stated that there was no inconsistency in the

verdicts, which, appellant contends, brings these decisions

—

—_—

within the purview of the principle set forth in the Cohens

ease above, and removes them as binding authorities, in the

case now under consideration.

It is therefore respectfully submitted that the general

proposition to the effect that ‘‘inconsistent verdicts are

not fatal,’’ and that they ‘‘afford no valid grounds for

setting aside a verdict,’’ as announced in these opinions

was wholly unnecessary to the decisions there rendered,

and amounted to no more than the expressions of a gen-

eral opinion within the meaning of Cohens v. Virginia;

and that because of this fact they are controlled by broader

propositions, as restated in,

Harriman v. Northern Securities Co., 197 U.S.

244, 291; 25 S. Ct. 493; L. Ed. 532,

to the effect that,

‘+ * *

general expressions of an opinion which are

not essential to dispose of the case are not permitted

to control the judgment im subsequent suits. Cohens

v. Virginia * * *’’ (Appellant’s italics) (291),

and should not be made use of to defeat Petitioner’s posi-

tion on this point. More appropo and persuasive is the

decision in the case of,

Rosenthal v. United States, 276 F. 714,

inferentially approved in Carrignan v. United States, 290

Fed. 189, 190.

3. Prior to the advent of the Dumn case, two irrecon-

cilable lines of decision prevailed in the Circuit Court of

Appeals, on the status and effect of ‘‘inconsistent’’ and

“repugnant’”’ verdicts. As pointed out in a decision of

the Eighth Circuit, handed down in 1927, in

Boyle v. United States, 22 F. 2d 547, 548,

‘There exists diversity of opinion among various

federal courts as to the effect of an inconsistent ver-

— en

dict, where there are different counts in an indictment,

On the one hand, it has been held that, where a jury

convicts upon one count and acquits upon another,

the conviction will stand, though there is no rational

way to reconcile the two conclusions. Such is the

holding ‘n the Second, Sixth, and Seventh Circuits.

Marshallo v. U. S., 298 F. 74 (C. C. A. 2);

Steckler v. U. S.,7 F. (2d) 59 (C. C. A. 2);

Seiden v. U. S., 16 F. (2d) 197 (C. C. A. 2);

Gozner v. U. S.,9 F. (2d) 603 (C. C. A. 6);

Carrignam v. U. S., 290 F. 189 (C. C. A. 7).

‘‘On the other hand, it has been held under similar

circumstances that the conviction will not be allowed

to stand unless the verdict of conviction is supported

by evidence other than that facts pleaded in support

of the counts upon which acquittal has been had. This

is the view adopted in this circuit and apparently in

the Third.

Peru v. U. S., 4 F. (2d) 881 (C. C. A. 8);

Murphy v. U. S., 18 F. (2d) 509 (C. C. A. 8);

John Hohenadel Co. v. U. S., 295 F. 489 (C. C. A.

3).”?

In accord with the dissenting opinion of Justice Butler

in the Dwnn case and that of Judge Donahue in the case of

Gozner v. United States, 9 F. 2d 603, the principles laid

down in :

Speiller v. United States, (C. C. A. 3, 1929), 31

F. 2d 682, 684,

it is submitted; advance the sounder reasoning which

would here apply. There the Court expressed itself in the

following language,

‘*In the instant case, the verdict of guilty in the

first count is not based-on other evidence than that

on which the jury found the defendant not guilty on

the second count. The government relied upon the

same facts to support a conviction in both counts. In

the second count, the jury said, in substance, that these

alleged facts are not true; they have no legal existence.

Where there is an acquittal on one count, charging the

same crime, the verdict of conviction will not be allowed

to stand unless supported by evidence other than on

which the acquittal was based. (Peru v. United States, 4

F. (2d) 881 (C. C. A. 81); Murphy v. United States, 18

F. (2d) 509 (C. C. A. 8); Boyle v. United States, 22 F.

(2d) 547 (C. C. A. 8). * * * When the liberty of a citizen

is at stake, a jury will not be permitted to make a play-

thing of the verdict and blow hot and cold at the same

time’’ (684). (Appellant’s italics.)

Enlarging upon the proposition set down in the decision

just quoted, appellant submits that the first essential of

any system of jurisprudence is, that it be consistent in

and with itself. That the law abhors unnatural conclusions

and absurd consequences is a principle as old as the con-

cept of justice itself.

Insisting from the outset as he did, that he thought

that he was dealing in ‘‘black market” goods and did not

know that the merchandise involved was stolen property

(Tr. p. 237), upon what rational basis conceivable can it

be said, in this matter involving but a single transaction,

that he both ‘‘knew’’ the meat was stolen, and at the same

time ‘‘did not know’’ the meat was stolen; that a thing

can ‘‘be’’ and ‘‘not be’’ at the same time, for reduced to

its final analysis, that is the inevitable conclusion reached

by the jury in its separate verdicts.

It is again respectfully submitted that the only major

difference between the case at hand and that of

Sealfon v. United States, ...... US. ......; 68 Sup. Ct.

237

is, that here, contradictory verdicts were rendered in a

single trial, and in the latter case they were rendered in two

successive trials. If the principle of res judicata applied

in the Sealfon case, why should it not apply with greater

eniliticase

force in the instant case, where the jury after first finding

the petitioner not guilty of the crime of conspiracy, with

all of the evidence before it, then undertook to find him

guilty of the substantive crime, and on a count of the in.

dictment in the original of which he was never actually

named.

CONCLUSION.

Summarizing, petitioner respectfully trusts that he has

made manifest, that the United States District Court erred,

to his great injury and prejudice in the following parti-

culars, (1) in permitting and directing the amendment of

Count II of the Indictment; (2) in obliging the appellant

to stand trial on the amended Count II of the Indictment;

(3) in overruling his Motion in Arrest of Judgment setting

up the errors pointed out in (1), (2), and (3) above, and

challenging, in addition, the contradictory, repugnant and

inconsistent character of the verdict of the jury.

He further respectfully submits that the Circuit Court of

Appeals has erroneously interpreted the provisions of the

Fifth Amendment to the Constitution of the United States,

Rule 7 (d) of the Federal Rules of Criminal Procedure, and

the long-standing principles announced and followed in Ex

Parte Bain; that the dissenting opinion of Circuit Judge

Minton correctly states the law with respect to the amend-

ment of an indictment, and this Court’s decision in Seal-

fon v. United States sustains his position with respect to

the contradictory verdict.

Wherefore, petitioner respectfully prays that his Petition

for a Writ of Certiorari be granted, and that he be ae-

corded all necessary and proper relief incident thereto.

Respectfully submitted,

Epwarp J. LEENeEy,

James J. CLARK,

Attorneys for Petitioner.

— lg —

APPENDIX.

Title 18, United States Code, Section 415, provides:

‘“Whoever shall transport or cause to be transported

in interstate or foreign commerce any goods, wares, or

merchandise, securities, or money, of the value of $5,-

000 or more theretofore stolen, feloniously converted,

or taken feloniously by fraud or with intent to steal or

purloin, knowing the same to have been so stolen,

feloniously converted, or taken, or whoever with un-

lawful or fraudulent intent shall transport or cause to

be transported in interstate or foreign commerce any

falsely made, forged, altered, or counterfeited securi-

ties, knowing the same to have been falsely made,

forged, altered or counterfeited, or whoever with un-

lawful or fraudulent intent shall transport, or cause

to be transported in interstate or foreign commerce,

any bed piece, bed plate, roll, plate, die, seal, stone,

type, or other implement, or thing used or fitted to be

used in falsely making, forging, altering, or counter-

feiting any security, or any part thereof, shall be

punished by a fine of not more than $10,000 or by

imprisonment for not more than ten years, or both:

Provided, That the provisions of this section shall

not apply to any falsely made, forged, altered, counter-

feited, or spurious representation of (1) an ‘obliga-

tion or other security of the United States’ as defined

in section 261 of this title or (2) an obligation, bond,

certificate, security, treasury note, bill, promise to pay,

or bank note, issued by any ‘foreign government’ as

defined in section 288 of this title, or by a bank or cor-

poration of any foreign country. May 22, 1934, c. 333,

Section 3, 48 Stat. 794, as amended Aug. 3, 1939, c. 413,

Section 1, 53 Stat. 1178.’’

Title 18, United State Code, Section 88, provides:

‘If two or more persons conspire either to commit

any offense against the United States, or to defraud the

contin

United States*in any manner or for any purpose, and

one or more of such parties do any act to effect the

object of the conspiracy, each of the parties to such?

conspiracy shall be fined not more than $10,000, or im.

prisoned not more than two years, or both. (R. 8. See

tion 5440; May 17, 1879, c. 8, 21 Stat. 4; Mar. 4, 1909,

ce. 321, Section 37, 35 Stat. 1096.)’’