Ivan L. Cathcart v. United States

Tenth Circuit

Ivan L. Cathcart v. United States

244 F.2d 74

CourtCourt of Appeals for the Tenth Circuit

DecidedJune 17, 1957

Docket5544

StatusPublished

Cited by11 cases

This text of 244 F.2d 74 (Ivan L. Cathcart v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ivan L. Cathcart v. United States, 244 F.2d 74 (10th Cir. 1957).

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Opinion

PER CURIAM.

The appellant appeals from a conviction and judgment upon an information alleging that he “did unlawfully and knowingly steal and did aid and abet in stealing from a railroad car * * * *75 moving in interstate commerce and from a passenger thereon” a mink cape in violation of Section 659 of Title 18 U.S.C.

The information, says the appellant, fails to allege a cognizable offense since on its face there was no theft from an interstate “shipment”. Such argument is without merit. The statute expressly provides that “Whoever * * * steals, or unlawfully takes * * * from any railroad car * * * operated by any common carrier moving in interstate * * * commerce or from any passenger thereon any * * * goods, or chattels, or * * * receives, or has in his possession * * * goods * * * knowing the same to have been * * * stolen” shall be fined not more than $5,000 or imprisoned for more than ten years, or both. (Emphasis added.)

Additionally, appellant takes the position that the information is defective for failing to formally plead a felonious intent. We have said that such formalities are no longer necessary or proper under the new rules of pleading. All that is required or permissible is a “plain, concise and definite written statement of the essential facts constituting the offense.” Rule 7(c), Federal Rules of Criminal Procedure, 18 U.S.C.; see Madsen v. United States, 10 Cir., 1948, 165 F.2d 507, 509.

And, the information is likewise challenged as duplicitous, in that it alleges (1) “did unlawfully and knowingly steal”; (2) “and did aid and abet in stealing”; (3) “and did unlawfully and knowingly receive and have in * * * possession” the goods in question. We have stated on numerous occasions that an indictment or information is not fatally duplicitous if couched in the language of the statute, even though it charges more than one offense in the conjunctive. McDonough v. United States, 10 Cir., 1955, 227 F.2d 402; Troutman v. United States, 10 Cir., 1938, 100 F.2d 628 and cases cited.

The judgment is Affirmed.

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PER CURIAM.

The appellant appeals from a conviction and judgment upon an information alleging that he “did unlawfully and knowingly steal and did aid and abet in stealing from a railroad car * * * *75 moving in interstate commerce and from a passenger thereon” a mink cape in violation of Section 659 of Title 18 U.S.C.

The information, says the appellant, fails to allege a cognizable offense since on its face there was no theft from an interstate “shipment”. Such argument is without merit. The statute expressly provides that “Whoever * * * steals, or unlawfully takes * * * from any railroad car * * * operated by any common carrier moving in interstate * * * commerce or from any passenger thereon any * * * goods, or chattels, or * * * receives, or has in his possession * * * goods * * * knowing the same to have been * * * stolen” shall be fined not more than $5,000 or imprisoned for more than ten years, or both. (Emphasis added.)

Additionally, appellant takes the position that the information is defective for failing to formally plead a felonious intent. We have said that such formalities are no longer necessary or proper under the new rules of pleading. All that is required or permissible is a “plain, concise and definite written statement of the essential facts constituting the offense.” Rule 7(c), Federal Rules of Criminal Procedure, 18 U.S.C.; see Madsen v. United States, 10 Cir., 1948, 165 F.2d 507, 509.

And, the information is likewise challenged as duplicitous, in that it alleges (1) “did unlawfully and knowingly steal”; (2) “and did aid and abet in stealing”; (3) “and did unlawfully and knowingly receive and have in * * * possession” the goods in question. We have stated on numerous occasions that an indictment or information is not fatally duplicitous if couched in the language of the statute, even though it charges more than one offense in the conjunctive. McDonough v. United States, 10 Cir., 1955, 227 F.2d 402; Troutman v. United States, 10 Cir., 1938, 100 F.2d 628 and cases cited.

The judgment is Affirmed.

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