Wild v. United States

JOHNSON, District Judge.

Plaintiff in error was convicted upon four counts of an indictment charging violations of section 48 of the Penal Code (Comp. St. § 10215). It is alleged in the first count of the indictment that the defendant, on or about the 12th day of April, 1920, received and concealed with intent to convert to his own use certain described property belonging to the United States. In the second count it is alleged that the defendant, on or about the 15th day of April, 1920, received and concealed certain other property, describing it, belonging to the United States,- with intent to convert the same to his own use. The third count charged the defendant with’having and retaining in his possession, with intent to convert to his own use, the property described in the first count. The fourth count charged the defendant with having and retaining in his possession, with intent to convert to his own úse, the property described in the second count.

It is alleged in each count of the indictment that the defendant received the property from one Novak, knowing that all of it had theretofore been stolen from the United^ States by the said Novak. It is not directly alleged in any of the counts of the indictment that the property had theretofore been stolen from the United States by Novak. Because of this defect the defendant at the beginning of the trial objected to the introduction of any evidence by the government. The objection was overruled, and exception taken. The ruling has been assigned as error. The sufficiency of an indictment -cannot be tested by objection to the introduction of testimony. McSpadden v. United States, 224 Fed. 935, 140 C. C. A. 413; Grant v. United States, 252 Fed. 692, 164 C. C. A. 532.

Later the defendant moved on the same ground to arrest the judgment. The ruling of the court denying the motion has been assigned as error. Unquestionably it should have been alleged in the indictment that the property had theretofore been-stolen from the United States by Novak, and it is not improper in this connection to remark that such omissions as this could easily be avoided, if government counsel would take the precaution to have the statute before them when drawing indictments.

The indictment recites that the property belonged to the United States when the defendant received it, and that he knew it had theretofore been stolen from the United States by Novak. This language necessarily implies that the property had theretofore been stolen from the United States. This defect in the indictment must be regarded, after verdict, as one of form, under section 1025 of the Revised Stat-1 utes, which provides that no indictment shall be deemed insufficient “by reason of any defect or imperfection of form only, which shall not tend to the prejudice of the defendant.” Dunbar v. United States, 156 U. S. 185, 15 Sup. Ct. 325, 39 L. Ed. 390; Rosen v. United States, 161 U. S. 29, 16 Sup. Ct. 434, 480, 40 L. Ed. 606; Price v. United States, 165 U. S. 311, 17 Sup. Ct. 366, 41 L. Ed. 727; Morris v. United States, 229 Fed. 516, 143 C. C. A. 584; State v. Martin, 94 Wash. 313, 162 Pac. 356.

The man from whom it is alleged in the indictment the defendant received the stolen property was called and known by the name stated in the indictment. The contention that there was a variance, because this was not his true name, is untenable. If the name by which a person is usually called and known is stated in the indictment, it is sufficient. Commonwealth v. Desmarteau, 82 Mass. (16 Gray) 1; Bishop’s New Criminal Procedure, § 686.

And the contention that there was a variance or failure of proof, because, as is claimed, the evidence failed to show that all of the property alleged in the several counts of the indictment was stolen, is equally without merit. It is sufficient if any part of it was stolen. People v. Fitzpatrick, 80 Cal. 538, 22 Pac. 215.

Plaintiff in error at the conclusion of the trial did not ask for a directed verdict, or in any manner raise the question of the sufficiency of the evidence to sustain the charges contained in the indictment. We are asked, nevertheless, to review the evidence appearing in the record for the purpose of determining this question. It is well settled that an appellate court may do this to correct obvious errors and to prevent manifest injustice. Doe v. United States, 253 Fed. 903, 166 C. C. A. 3; Anderson v. United States (C. C. A.) 264 Fed. 75; McNutt v. United States (C. C. A.) 267 Fed. 670; Holland v. United States (C. C. A.) 268 Fed. 244.

It is not claimed there is not evidence tending to show that the defendant was guilty of serious wrongdoing in respect of much of the property described in the indictment; it is only contended that the evidence was insufficient to show that he was guilty of the offenses charged in the indictment; in other words, it is claimed that the evidence failed to show that the defendant was guilty of receiving, etc., property of the United States, knowing that it had theretofore been stolen while it is not seriously disputed that the .evidence was sufficient to convict the defendant of larceny, if he had been charged, under section 332 of the Penal Code (Comp. St. § 10506), with counseling Novak to steal the property. Counsel in their brief frankly say:

“In conclusion we shall call the court’s attention to the fact that one who counsels, aids, and advises, or counsels, is an accessory. Section 332, Penal Code. The accessory by federal law is made a principal, and is punishable as a principal. If Wild was guilty on the testimony of Novak, of aiding, assisting, counseling, and advising, he might be punished as a principal for robbery or larceny. * * * This was not the charge made against him in the indictment. We call the court’s attention to this, for the purpose, of urging the distinction between robbers', larceny, and receiving stolen property in considering the evidence 'in this case.” °

The contention of counsel would demand careful consideration if based upon rulings of the trial court duly excepted to. But that is not the case. The appeal is that the appellate court shall of its own motion go into the record for the purpose of determining whether the thief has not been improperly charged and convicted as a receiver or concealer of the stolen property. It is not suggested that the judgment in this case would not be a bar to a prosecution of the defendant for the larceny; but, even if possible, such a prosecution is too improbable to be seriously considered. In our opinion the situation does not justify the exercise of the judicial discretion of the court. Robins v. United States (C. C. A.) 262 Fed. 126; Sturtz v. United States (C. C. A.) 268 Fed. 350.

Complaint is made in respect of the cross-examination of the defendant, who testified as a witness in his own behalf. It is true that he was cross-examined about matters wholly outside of the issues. Much of the cross-examination, not only did not tend to prove any of the charges contained in the indictment, but was not even competent for the purpose of affecting his credibility as a witness. No objection was made at the time, nor was the trial court ever asked to instruct the jury to disregard the matters brought out by the improper cross-examination. Evidently the impropriety of the cross-examination was an afterthought.

Aside from the state of the record; there is a good and sufficient reason why a new trial should not be granted. We are by no means convinced that the jury was influenced to return the verdict they did by reason of the improper cross-examination of the defendant. See section 269 of the Judicial Code, as amended by the Act of Rebruary 26, 1919 (40 Stat. 1181 [Comp. St. Ann. Supp. 1919, § 1246]). Under the evidence and the instructions of the court, the jury was full}7 justified in finding the defendant guilty.

The other matters argued, which are not reviewable on account of the state of the record, require no special notice.

The judgment should be, and accordingly is, affirmed.