Grimsley v. United States

50 F.2d 509, 1931 U.S. App. LEXIS 4504

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 6, 1931
• Docket: 6133, 6142
• Status: Published

Opinions

BRYAN, Circuit Judge.

J. Clifford Grimsley, appellant in No. 6133, was convicted upon an indictment which charged that on June 25, 1929, in the Northern District of Florida, he, “then and there unlawfully and feloniously, did sell a certain motor vehicle, to-wit, Ford Sedan, Motor No. A-669267, then and there well knowing the same to have been transported in interstate commerce, that is to say from Mobile, in the State of Alabama, to Pensacola in the State of Florida, and then and there well knowing the same to have theretofore been stolen.” George Grimsley, appellant in No. 6143, was convicted upon an indictment, identical in form with that against Clifford Grimsley, which alleged the sale of another automobile at a later date. Each indictment was demurred to on the ground that it failed to allege any offense against the laws of the United States, and on the further ground that it failed to allege directly that the motor vehicle, which the appellant proceeded against was charged with selling, had been stolen. The demurrers were overruled, and the orders thereon are assigned as errors.

The indictments were drawn under the National Motor Vehicle Theft Act, 18 USCA § 408. That act provides for the punishment, by section 3, of one who transports in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen; and, by section 4, of one who receives, conceals, stores, barters, sells or disposes of a motor vehicle, “moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen.” 41 Stat. 334. It is an essential element of the offense under the fourth section that the accused receive the motor vehicle while it is moving as, or is a part of, or constitutes, interstate or foreign commerce. The act, as is apparent on the face of it, is based upon the commerce clause of the Constitution, and does not assume to punish one who receives or sells a stolen motor vehicle after it has ceased to move in, or be a part of, interstate or foreign commerce. Brooks v. United States, 267 U. S. 432, 45 S. Ct. 345, 69 L. Ed. 699, 37. A. L. R. 1407. This essential element was not alleged in the indictments under consideration.

It is true that eaeh appellant was charged with knowledge that the automobile which it was alleged he received and sold had been- previously transported in interstate commerce; but for all that appears in either indictment, such transportation had come to an end and the automobile had come to rest in Florida long before the accused received or sold it. The indictments, under the most liberal interpretation, charged only the ordinary offense against the state law of receiving stolen goods with knowledge that they had been stolen; they failed to charge directly, or even by implication, an offense within the jurisdiction of the federal District Court. An indictment is fatally defective which omits an essential element of the offense sought to be charged. Evans v. United States, 153 U. S. 584, 14 S. Ct. 934, 38 L. Ed. 830. The right of an accused to be informed of the nature and cause of the accusation against him is a substantial right, the enjoyment of which is assured by the Sixth Amendment. It is not a mere technical or formal right, within the meaning of 18 USCA § 556 or 28 USCA § 391. United States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; United States v. Hess, 124 U. S. 483, 8 S. Ct. 571, 31 L. Ed. 516. We are therefore of opinion that it was reversible error not to sustain the demurrers on the ground that the indictments failed to charge an offense against the laws of the United States. This conclusion makes it unnecessary to consider the second ground of demurrer, to the effect that the indictments failed to allege directly and positively that the automobiles, which the accused were charged with selling, had been stolen; for from what has been already said, it follows that in our opinion new indictments will have to be found before appellants can be further prosecuted. The present indictments having been found within the statutory period of limitations, new indictments would not be barred, even after the expiration of that period. 18 USCA § 582, as amended in 1927.

In view of the situation, we deem it proper to suggest that the new indictments, if they shall be found, ought to allege directly that the motor vehicles had been stolen. The whole objeet of the act of Congress is to punish the transportation or receipt in interstate or foreign commerce of motor vehicles that have been stolen. Brooks v. United States, supra. Theft of a motor vehicle is therefore an essential element of the crime. It is not always true that a statutory crime may be alleged in an indictment in the language of the statute. United States v. Hess, supra. For a form of indictment which well alleges the common offense of receiving stolen goods with knowledge that they had been stolen, see Bishop’s Directions & Forms, § 916. It is so easy for the pleader to follow this or some other approved form in alleging the receipt or sale of stolen goods with knowledge that they had been stolen, that eourts ought not to have to resort to inferences and to statutes relating to harmless error, in an effort to bolster up an indictment for that offense.

The judgments are, and each of them is, reversed; and the causes are remanded for further proceedings not inconsistent with this opinion.