Appendix — Keys v. United States

21

APPENDIX A.

United States of America, Plaintiff, vs. George H. Keys,

Defendant. No. 15,108.

INDICTMENT.

The grand jurors of the United States of America,

duly and legally chosen, selected, summoned and drawn

from the body of the Western District of Missouri, and

duly and legally empanelled, sworn and charged to in-

quire of and concerning crimes and offenses against the

United States of America in the Western District of Mis-

souri, upon their oaths present and charge that at Kan-

sas City, Jackson County, Missouri in the Western Divi-

sion of the Western District of Missouri, and on or about

the 4th day of June 1940, one George H. Keys did then

and there wilfully and feloniously transmit in interstate

commerce by the means of the Post Office establishment

of the United States a certain communication addressed

to Aluminum Association, 903 American Bank Building,

Pittsburgh, Pennsylvania, an association then and there

engaged in promoting the manu- (fol. 2) facture, dis-

tribution and sale to the public of aluminum for various

purposes, and in particular for cooking utensils, with

the willful and felonious intent then and there and there-

by to extort from the addressee, the said Aluminum As-

sociation, money and other things of value, the said com-

munication then and there containing a threat to injure

the reputation of the said addressee unless money and

other things of value should be paid over to the said

George H. Keys, the said injury to the reputation of the

addressee contemplated as aforesaid being embraced by a

threat in said communication contained that the said

George H. Keys would distribute a pamphlet to the pub-

lic to the effect that the use of aluminum cooking uten-

22

sils is harmful and is a causative factor in diabetes and

other diseases;

Contrary to the form of the statute in such cases made

and provided, and against the peace and dignity of the —

United States of America.

Richard H. Musser |

Assistant United States |

Attorney.

A True Bill;

W. B. Hodge,

Foreman of the grand

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APPENDIX B.

UNITED STATES CIRCUIT COURT OF APPEALS.

EIGHTH CIRCUIT.

No. 12,069.—November Term, A. D. 1941.

Georce H. Keys,

Appellant,

VS.

UNITED STATES OF AMERICA,

Appellee.

Appeal from the District Court of the United States for

the Western District of Missouri.

{March 2, 1942.]

Mr. C. W. Prince (Mr. William R. Ross was with

him on the brief) for Appellant.

Mr. Charles F. Lamkin, Jr., Assistant United States

Attorney (Honorable Maurice M. Milligan, United States

Attorney was with him on the brief) for Appellee.

Before Stone, Thomas and Johnsen, Circuit Judges.

Thomas, Circuit Judge, delivered the opinion of the

court,

The appellant was convicted under an indictment

which charges a violation of Sec. 408d(c), U. S. C., 18

U.S. C. A., Sec. 408d(c), which provides:

“Whoever, with intent to extort from any per-

son, firm, association, or corporation, any money or

other thing of value, shall transmit in interstate

commerce by any means whatsoever any communica-

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tion containing any threat to injure the property or

reputation of the addressee or of another. . .shall

be fined. . .”

The indictment recites that:

“| .on or about the 4th day of June 1940,

one George H. Keys did then and there wilfully and

feloniously transmit in interstate commerce by the

means of the Post Office establishment of the United

States a certain communication addressed to Alumi-

num Association, 903 American Bank Building, Pitts-

burgh, Pennsylvania, an association then and there

engaged in promoting the manufacture, distribu-

tion and sale to the public of aluminum for various

purposes, and in particular for cooking utensils, with

the willful and felonious intent then and there and

thereby to extort from the addressee, the said Alumi-

num Association, money and other things of value,

the said communication then and there containing a

threat to injure the reputation of the said addressee

unless money and other things of value should be

paid over to the said George H. Keys, the said in-

jury to the reputation of the addressee contemplated

as aforesaid being embraced by a threat in said com-

munication contained that the said George H. Keys

would distribute a pamphlet to the public to the ef-

fect that the use of aluminum cooking utensils is

harmful and is a causative factor in diabetes and

other diseases.”

The appellant’s contention in this are (1) that

the evidence is insufficient to establish intent and threat

and (2) that the indictment is insufficient.

The first contention is without merit. The ques-

tion presented was raised in the lower court by objec-

tion to the admission of evidence and by motion for a di-

rected verdict. The government introduced in evidence

a “communication” consisting of a letter addressed to

Aluminum Association, Pittsburgh, Pennsylvania, and a

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25

pamphlet. The defendant testified in his own behalf and

admitted that he sent both documents. These papers!

contain sufficient statements to warrant the jury in find-

ing both intent and a threat.

The second contention is more serious. The alleged

defect in the indictment is that it does not embody a

copy of the “communication” including the letter and

pamphlet. It is pointed out that the indictment does not

show the date of the letter nor state the name of the

author, and that the charge that it contains a threat is a

conclusion of the pleader.

The indictment was not assailed in the trial court

by motion for a bill of particulars or otherwise; but where

an indictment is challenged for the omission of an essen-

l(a) The letter: Geo. H. Keys

3406 Indiana Ave.

ALUMINUM ASSOCIATION Kansas City, Mo.

903 American Bank Bldg. June 4, 1940

Pittsburg, Penna.

Attention: Secretary

Dear Sir:

We are very familiar with all of your underhand politics and

detrimental activity. I’m enclosing a reminder of the true status

of ALUMINUM.

These articles should sell very quickly and in great quantity

at $1.50 Per M. F.O.B. Chicago and Kansas City. They are on

very good paper, well laid out and contain some very helpful and

valuable information.

I expect to get under way next week in a trial distribution

for checking territory activity after saturation. As you have so

successfully locked my mail up, I will now be free to take up this

educational activity. The many - - many sick people will ap-

preciate this information very much, especially the diabetics as

they are greatly helped.

Now gentlemen it all sums up to this. If you think you

would rather have me in the food business you can open up the

NATUR-FOOD mails. If you would rather have me devote my

time to the writing of literature, health lessons and educational

work @long these lines, why - - - just leave your dirty work as

is and keep the NATUR-FOOD mail stopped.

26

tial element of the crime the objection may be asserted

in this court for the first time. Harris v. United States,

8 Cir., 104 F. 2d 41, 43; Nicholson v. United States, 8

Cir., 79 F. 2d 387; Dropps v. United States, 8 Cir., 34 F,

2d 15.

The essentials of the crime defined in the statute

are (1) an intent to extort money; (2) the transmission ;

in interstate commerce of a communication (3) contain- iz

ing a threat to injure the property or reputation of the

addressee or another.

: The indictment attempts to charge these essentials

‘ by pleading that the defendant (1) “with the willful and

felonious intent. . .thereby to extort from the addressee, —

the said Aluminum Association, money. . .(2) did ai

4 transmit in interstate commerce by means of the Post

Office establishment of the United States. . .a certain [-

communication addressed to the Aluminum Association [|

(3) containing a threat to injure the reputation of the .

said addressee unless money. . .should be paid over :

to” the defendant,---“the said injury to the reputation of

CU ea

If you are in sympathy with the TRU-SCIENCE educational

work, I am sure Miss Randall will appreciate your contribution

very much as it will go to help so many people. Address all

contributions to TRU-SCIENCE. Make all checks payable to

Miss Thelma Randall.

Yours very truly,

Geo. H. Keys.

Appellant testified that Miss Thelma Randall is his assistant.

(b) The pamphlet enclosed with the foregoing letter is set out

in the record. It is too long to be copied in full. It is headed:

Are there Dangers in the use of Aluminum Cooking Utensils?. .

Congress should Investigate the Aluminum Association and the

American Medical Ass’n. Help the Cause! Buy these pamphlets

for your relatives and friends. Pass them on. 5c each - - 80c per

100 Published by Tru-Science Reliance Bldg. Kansas City, Mis-

souri. A National Movement.

The text of the pamphlet, fairly summarized in the in-

dictment, is “to the effect that the use of aluminum cooking

utensils is harmful and is a causative factor in diabetes and other

diseases.”

wea a i reco: eo Nee ans

Pea eke a at Ae Peg a8

27

the addressee contemplated as aforesaid being embraced

by a threat in said communication contained that the

said George H. Keys would distribute a pamphlet to the

public to the effect that the use of aluminum cooking

utensils is harmful and is a causative factor in diabetes

and other diseases.”’

In Cochran and Sayre v. United States, 157 U. S.

286, 290, the Supreme Court said that the “‘true test” of

an indictment is, “not whether it might possibly have

been made more certain, but [1] whether it contains

every element of the offence intended to be charged,

and [2] sufficiently apprises the defendant of what he

must be prepared to meet, and, [3] in case any other

proceedings are taken against him for a similar offence,

whether the record shows with accuracy to what extent

he may plead a former acquittal or conviction.”

In Hagner v. United States, 285 U. S. 427, 431, 52

S. C. R. 417, the Court said: “The rigor of old common

law rules of criminal pleading has yielded, in modern

practice, to the general principle that formal defects, not

prejudicial, will be disregarded.” And Sec. 556, Title 18

U.S. C. A. (Sec. 1025, Revised Statutes) provides:

“No indictment found and presented by a grand

jury in any district or other court of the United

States shall be deemed insufficient, nor shall the

trial, judgment, or other proceeding thereon be af-

fected by reason of any defect or imperfection in mat-

ter of form only, which shall not tend to the preju-

dice of the defendant. . .”

In Hagner v. United States, supra, the Court said:

“This section was enacted to the end that, while

the accused must be afforded full protection, the guilty

shall not escape through mere imperfections of plead-

ing.

* * * * * * * *

“It, of course, is not the intent of Section 1025

to dispense with the rule which requires that the es-

‘

‘

:

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sential elements of an offense must be alleged; but

it authorizes the courts to disregard merely loose or

inartificial forms of averment. Upon a proceeding

after verdict at least, no prejudice being shown, it

is enough that the necessary facts appear in any form,

or by fair construction can be found within the terms

of the indictment.”

Under these rules most of appellant’s criticism of the

indictment fail for want of substance. All the elements

of the offense are charged; and, in so far as the present

trial is involved, no prejudice is shown. The appellant

admitted the sending of the letter, prepared for trial, and

offered evidence in an attempt to explain the contents of

the letter in such a way as to demonstrate his innocence.

The only problem is whether the failure to set out a copy

of the letter and pamphlet in haec verba is a defect of

substance or of form only. At common law an indictment

for sending a threatening letter, or for forgery or libel,

was required to be set out in haec verba. Bradlaugh v.

The Queen, L. R. 32, B. D. 618; and the federal courts

have in some instances followed or repeated the rule.

United States v. Noelke, C. C. N. Y., 1 Fed. 426, 433;

Wilson v. United States, 2 Cir., 275 Fed. 307, 312. In these

cases it was held or stated obiter that a failure to set

out a literal copy of the document is a defect of substance

and not of form. The more modern view, we think, is

to the contrary. In United States v. Goldsmith, 2 Cir.,

68 F. 2d 5, 7, (cert. den., 291 U. S. 681), the defendant

was charged with uttering a forged instrument under

Sec. 28 of the Criminal Code (18 U. S. C. A. Sec.

72), and the indictment did not set out in full the instru-

ment alleged to have been uttered as a forgery. This was

urged as a fatal defect. The court held, in a well-reasoned |

opinion, that “the defect in pleading was one which could |

be cured by verdict.” We agree with the result; and we

perceive no reason why the rule is not applicable to a

threatening letter as well as a forgery. In the instant

case all the necessary facts can be found by fair construc-

29

tion within the terms of the indictment. See also Sparks

v. United States, 6 Cir., 50 F. 2d 61, 63; Nicholson v.

United States, 8 Cir., 79 F. 2d 387, 389; and compare

Corbett v. United States, 8 Cir., 89 F. 2d 124, 127; Hewitt

v. United States, 8 Cir., 110 F. 2d 1, 5; Muench v. United

States, 8 Cir., 96 F. 2d 332, 335; Kane v. United States,

8 Cir., 120 F. 2d 990, 992.

Appellant insists that prejudice results because he

may be exposed to a second prosecution for the same of-

fense, in which case upon a plea of double jeopardy he

could not identify the ‘‘ccommunication”’ upon which the

present charge is based for the reason that it is insuf-

ficiently described in the indictment. The indictment sets

out the date the letter was mailed, the name of the ad-

dressee and by reference the nature of its contents. It

does not state the date on which it was written, the place

where it was written nor the name of the person, if any,

who signed it. These are not essentials of the offense.

The crime was complete even though the letter bore no

date and the name of the author and the place where

it was written were unknown. There could in fact be

no confusion for any of the reasons assigned. It does

not appear that another letter of the same kind was at

any time sent or received. The fact that the defendant

upon reading the indictment recognized the letter re-

ferred to and made no objection to the description at the

time indicates the want of merit in his present criti-

cism. The date on which the indictment letter was sent,

the name of the addressee and the reference to its con-

tents in the indictment constitute a sufficient identifi-

cation. See Scheib v. United States, 7 Cir., 14 F. 2d 75,

77; Durland v. United States, 161 U. S. 306; State v. Stew-

art, 90 Mo. 507; Corbett v. United States, supra.

Other alleged defects in the indictment are argued,

but they are not substantial. It is claimed, for example,

that the indictment failed to charge that the pamphlet

which defendant threatened to distribute contained false

representations and that defendant knew them to be false.

30

These matters are not elements of the offense defined

in the statute. They are, therefore, immaterial. Warren

v. United States, 8 Cir., 183 F. 718; Rosen v. United

States, 161 U. S. 29; State v. McCabe, 135 Mo. 450.

Again, it is argued that an “injury”? means the vio-

lation of one’s legal rights; that there is no claim that

any legal right of the addressee, Aluminum Association,

was violated; that the statements in the letter and

pamphlet are true; that the defendant had a right to

distribute them; and that a threat to do something which

a person has a right to do is not a threat in a legal sense.

None of these alleged omissions constitutes defects open

to attack after verdict and in this court. None of them

is an essential element of the offense. In so far as they

relate to burden of proof the defendant’s rights could be

protected in the charge to the jury. The instructions of

the court are not set out in the transcript of record. In

such circumstances we presume that, if requested, the

court properly instructed upon all these matters and that

the jury found against defendant upon all of them. Hag-

ner v. United States, supra, at page 433.

AFFIRMED.

Inthe Supreme Court of the Anited States

OcTOBER TERM, 1941

No. 1217

GrorckE H. KEYS, PETITIONER

v.

Unrirep States oF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE EIGHTH

CIRCUIT

MEMORANDUM: FOR THE UNITED STATES

The judgment of the circuit court of appeals

affirming the judgment of conviction was entered

March 2, 1942 (R. 64-65). <A petition for rehear-

ing (R. 65-68) was denied March 26, 1942 (R. 68).

Exeluding March 26, Sundays (March 29, April 5,

12, 19, 26), and holidays (April 18, a legal holiday

in Missouri, II Mo. Rev. Stat. (1939), see. 15313,

p. 3881, the State in which the suit was brought),

the thirty-day period prescribed by Rule XI of the

Rules in Criminal eases (292 U. S. 661, 666) for

filing a petition for writ of certiorari expired May

1, 1942. The petition for the writ was not filed

461900 4. (1)

2

until May 5, 1942. We are advised by the Clerk

that no order extending the time for filing was

made by a Justice of this Court. Accordingly, the

petition is out of time and should be dismissed for

want of jurisdiction.’

Respectfully submitted,

CHARLES Fany,

Solicitor General.

May 1942.

‘Compare Rust Land Co, v. Jackson, 250 U.S. 71, 76; To-

ledo Seale Co. v. Comp~ting Seale Co., 261 U.S. 399, 417

418; Hartford Accident Co. v. Bunn, 285 U.S. 169, 178.

U S GOVERNMENT PRIM TING Seerce 8

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