Yates v. United States ( 1945 )

MATHEWS, Circuit Judge.

Appellant, John Edward Yates, was indicted under §§ 272 and 276 of the Criminal Code, 18 U.S.C.A. §§ 451, 455.¹ The indictment charged that appellant, on or about February 4, 1944, “in and on board a certain American vessel known as and called the ‘President Johnson,’ belonging in whole or in part to the American President Lines, Inc., a corporation created by and under the laws of the State of Delaware, on waters within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular State of the United States, to-wit, at Purvis Bay, Florida Island, Solomon Island Group, then and there being, with a knife or some sharp instrument, a more particular description of said knife or instrument being to the Grand Jurors unknown, then and there unlawfully, feloniously, wilfully with malice aforethought, and with intent to kill Henry Frederick Olsen, did assault, beat, strike, cut and stab said Henry Frederick Olsen, a male human being, with said knife or sharp instrument, in the side and arm and elsewhere in and upon the body of said Henry Frederick Olsen.”

Appellant was arraigned, pleaded not guilty and was tried. The jury returned the following verdict: “We, the jury, find John Edward Yates, the defendant at the bar, guilty of an assault with a deadly weapon.” The court thereupon entered a judgment sentencing appellant to be imprisoned for five years. From that judgment this appeal is prosecuted.

Section 276 of the Criminal Code, 18 U.S.C.A. § 455,² defines the offense of assaulting another with intent to commit murder or rape, the offense of assaulting another with intent to commit a felony other than murder or rape, the offense of assaulting another with a dangerous weapon, instrument or other thing with intent to do bodily harm and without just cause or excuse, the offense of unlawfully striking, beating or wounding another, and the offense of unlawfully assaulting another. It says nothing about an assault with a deadly weapon.

The indictment did not charge the offense of assaulting another with intent to commit murder or rape, the offense of assaulting another with intent to commit a felony other than murder or rape, or the offense of assaulting another with a dangerous weapon, instrument or other thing with intent to do bodily harm and without just cause or excuse. It did, however, charge the offense of unlawfully striking, beating and wounding another and the offense of unlawfully assaulting another.³

The indictment was not challenged on the ground of duplicity or any other ground. Whether it was duplicitous need not be considered, the defect, if any, having been cured by verdict.⁴

Appellant was not found guilty of the offense of assaulting another with intent to commit murder or rape, the offense of assaulting another with intent to commit a felony other than murder or rape, the offense of assaulting another with a dangerous weapon, instrument or other thing with intent to do bodily harm and without just cause or excuse, or the offense of unlawfully striking, beating or wounding another. He was, however, found “guilty of an assault with a deadly weapon.” The indictment, as shown above, charged an assault —the offense of unlawfully assaulting another — but did not charge an assault with a deadly weapon. Not being responsive to the indictment, the words “with a deadly weapon” may be rejected as surplusage.⁵ Rejecting these words, we conclude that appellant was found guilty of the offense of unlawfully assaulting another and was not found guilty of any other offense.

For the offense of which appellant was found guilty, § 276 of the Criminal Code, 18 U.S.C.A. § 455, prescribes a fine of not more than $300, or imprisonment of not more than three months, or both. In imposing a severer sentence, the trial court erred.

Judgment reversed and case remanded with directions to enter judgment imposing a sentence within the limits prescribed.

1 Section 272 of the Criminal Code, 18 U.S.C.A. § 451, provides that the crimes and offenses defined in chapter 11 (§§ 272-289) of the Criminal Code, 18 U.S.C.A. §§ 451-468, shall be punished as therein prescribed, “When committed upon the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, or when committed within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State on board any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, or District thereof.” Section 276 of the Criminal Code, 18 U.S.C.A. § 455, provides: “Whoever shall assault another with intent to commit murder, or rape, shall be imprisoned not more than twenty years. Whoever shall assault another with intent to commit any felony, except murder, or rape, shall be fined not more than $3,000, or imprisoned not more than ten years, or both. Whoever, with intent to do bodily harm, and without just cause or excuse, shall assault another with a dangerous weapon, instrument, or other thing, shall be fined not more than $1,000, or imprisoned not more than five years, or both. Whoever shall unlawfully strike, beat, or wound another, shall be fined not more than $500, or imprisoned not more than six months, or both. Whoever shall unlawfully assault another, shall be fined not more than $300, or imprisoned not more than three months, or both.”

2 See footnote 1.

3 As shown above, the indictment charged that appellant “unlawfully * * • did assault, beat, strike, cut and stab * * * Henry Frederick Olsen.”

4 Connors v. United States, 158 U.S. 408, 15 S.Ct. 951, 39 L.Ed. 1033; Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709; Wiborg v. United States, 163 U.S. 632, 16 S.Ct. 1127, 1197, 41 L.Ed. 289; Haussener v. United States, 8 Cir., 4 F.2d 884; Greater New York Live Poultry Chamber of Commerce v. United States, 2 Cir., 47 F.2d 156; Blackwood v. United States, 8 Cir., 138 F.2d 461.

5 23 C.J.S., Criminal Law, § 1397, p. 1076.