United States v. Bosch , 10 P.R. Fed. 463 ( 1918 )

HamiltoN, Judge,

delivered tbe following opinion:

Tbe indictment in tbis case contains five counts, of tybicb four relate to alleged statements by defendant to one Cabrera about President Wilson, and tbe fifth relates to statements to one Valdez relating to a passport,' — all made at approximately the same time. Tbe matter now comes up on demurrer to tbe indictment.

1. Tbe demurrer alleges defects in each count, with tbe same general effect that tbe offense charged does not violate a law of tbe United' States or any of tbe particular parts of tbe Espionage Act under which tbe counts are drawn. Tbe points raised have probably been substantially disposed of in the case of tbe United States against Baibas, and even if not so are of less merit under tbe amendments of tbe Espionage Act than previously. They bring up tbe point for tbe court to determine whether certain statements show any intent to violate tbe law. Tbe question of intent and tbe like is especially for tbe jury, because tbe surroundings give color to tbe words involved. Tbe court cannot say that as they stand 'the words do not import tbe intent or result alleged. If tbis proves to be tbe fact under tbe evidence tbe defendant will have tbe benefit of it before tbe jury. Tbe amendments to tbe Espionage Act are so sweeping that it will be difficult to come to tbe conclusion demanded by tbe demurrer.

2. It is true, as alleged by tbe demurrer, that tbe utterances alleged to have been made before Cabrera and Valdes were different; but' they were as set out on the same day and of the same nature, and no reason appears why they should not, under the general rule of criminal procedure, be set up in different counts of one indictment. That is the object of having different counts. That a joint trial will prejudice .the defendant does not at present appear. He might well be guilty of one offense and not of the other, and juries frequently acquit defendants of particular counts.

3. The ground alleged that the words, “other statements which he the said Bosch then and there made to the same tenor and effect,” are indefinite and uncertain, seems to be well taken. If it is right to set out what he said to Cabrera and what he said to Valdes, it is equally right to set out any other statements that he might have made that seemed criminal. It certainly would not be allowable to bring an indictment which says only that the defendant made criminal statements without defining what they are or wherein they are criminal. If the statements were identical it should be so alleged in aggravation of the offense; if they were not the same, they constituted a different offense and should be set out in a separate count. As it stands they would, as the demurrer alleges, seem to deprive the defendant of a full and ample opportunity to prepare his defense. The demurrer to that extent is therefore sustained.

4. Under §§ 1025 and 1026 of the Bevised Statutes, Comp. Stat. 1916, §§ 1691, 1692, however, the only result is that this particular allegation is to be considered as struck out of the indictment. If a matter is alleged so indefinitely that the trial on it might prejudice the defendant, it cannot prejudice, and in fact would be remedying any supposed prejudice, to strike it out. Tbis is tbe result of tbe ruling in tbe case at bar. Defendant will, therefore, answer tbe indictment with tbe immaterial defect amended out, as it is now held that tbe defect is a matter of form only, and does not tend to bis prejudice. United States v. Stone, 8 Fed. 232; New York C. & H. R. R. Co. v. United States, 212 U. S. 481, 53 L. ed. 613, 29 Sup. Ct. Rep. 304; Davey v. United States, 125 C. C. A. 437, 208 Fed. 237.

Tbe words above set out will therefore be struck out of tbe indictment, and tbe defendant will answer accordingly.

It is so ordered.