Lanckton v. United States

18 App. D.C. 348

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 29, 1901
• Docket: No. 1070
• Status: Published

Opinion

Mr. Justice Shepard

delivered the opinion of the Court:

1. The first assignment of error is founded on the objections set out in the overruled motion to quash the indictment. These are stated in full above and are substantially that: There is no record showing that a court was organized at the April term, 1900, or the presence of any officer but the presiding judge on the first, or any subsequent day of the April term; the record does not show that the said court was held at the. place designated by law for holding said court; the record does not show that a grand jury was duly and legally organized at said April term; or where the court was sitting at the time; or that the indictment was returned by a legally constituted grand jury; the record does not show that the indictment was presented with tire concurrence of at least twelve grand jurors.

There was no plea in abatement, and the motion to quash contained no allegation that, as a matter of fact, there had been no grand jury lawfully empanneled, or no lawful presentment of the indictment. The objection was confined to the suggestion that the recorded minutes of the trial court did not disclose these necessary facts with technically sufficient precision.

The minutes referred to were made by the direction, and were under the eye, of the justice presiding at the trial, and had he not been satisfied of their sufficiency, he had the power, and presumably would have exercised it, to amend them according to the facts that were necessarily within his own actual knowledge. Hule V of this court requires that tbe transcript of tbe proceedings prepared for appeal shall show in the caption nothing more than the title of the case, the names of the parties in full, and the time of the commencement of the suit or proceeding; and that has been conformed to. Consequently there is nothing in the record before us by which to test the sufficiency of the actual entries of the minutes, either in form or substance, beyond the indictment itself with its recitals and indorsements, and the recital of its presentation in open court on a day of the April term. The transcript containing a formal indictment duly filed in open court in regular term, raises the presumption of regularity in all the proceedings prior thereto, which must continue until rebutted by facts and conditions properly presented in a bill of exceptions.

The bill of exceptions contains nothing more than the motion to quash, the action overruling it and the reservation of an exception thereto. Turning to the recitals, of the motion itself and accepting the facts stated therein as true, together with all reasonable deductions therefrom, we cannot find that the court erred in overruling it.

The Supreme Court of the District is a court of general jurisdiction, and its terms are fixed by law, of which we are bound to take notice; and it is not necessary to the legality of the session of its several branches that the minutes should recite the appearance of the clerk and marshal at the opening of the term, or that the sitting was in the District and in the building designated for the purpose. Regularity in these respects is necessarily presumed. It appears from the recitals of the motion that a grand jury was empanneled at the April term; that a foreman was duly appointed, and that an indictment in due form was returned in open court indorsed, “ a true bill,” over the signature of the foreman. From these it must be presumed that the grand jury empanneled was the grand jury required by the Constitution and the law, and that the true bill returned in open court was concurred in by the requisite number. That the foreman’s name, as written, was W. II. H. Cissel instead of William H. H. Cissel, as recited in the minutes, is a fact of no consequence. In our opinion, the record shows, substantially, all that is required to sustain a conviction in an appellate court: A formal indictment presented and filed as a true bill; an arraignment and plea; trial, verdict and sentence. Pointer v. United States, 151 U. S. 396, 418, 419; Crain v. United States, 162 U. S. 625.

2. The eleventh and twelfth specifications of the motion to^ quash attack the sufficiency of the indictment upon the following grounds, substantially: 1st. It does not set forth “ the estate, or degree or mystery ” of the defendant; 2d. It does not aver “ the town, hamlet or place or county in which the defendant was conversant.”

These are founded on the requirements of the ancient English statute of 1 Hen. V, Ch. 5, (A. H. 1413) which reads as follows:

“ That in every original writ of actions personals, appeals, and indictments, and in which the exigent shall be awarded in the names of the defendants in such writs original, appeals and indictments, additions shall be made of their estate or degree, or mystery, and of the towns, or hamlets, or places, and counties, of which they were or be, or in which they be or were conversant; (2) and if by process upon the said original writs, appeals, or indictments, in which the said additions be omitted, any utlagaries be pronounced, that they be void, frustrate and holden for none; (3) and that before the utlagaries pronounced, the said writs and indictments shall be abated' by the exception of the party, wherein the same the said additions be omitted. (4) Provided always, that though the said writs of additions personals be not according to the records and deeds, by the surplusage of the additions aforesaid, that for that cause they be not abated; (5) and that the clerks of the chancery, under whose names such writs shall go forth -written, shall not leave out, or make omission of the said additions as is aforesaid, upon pain to be punished and to pay a fine to the king by the discretion of the chancellor; (6) and this ordinance shall begin ■to hold place at the suit of the party, from the feast of St. Michael next ensuing forward.”

The contention that this statute was in force in Maryland at the time of the cession, and, as such, was continued in force by the terms of the act of Congress of February 27, 1801, has some support, it must be admitted, in the authorities cited by counsel.

It appears in full in the Compiled Statutes of the District (p. 460, Sec. 83); and in 1790, the General Court of Maryland is reported as having quashed an indictment because of the omission of the additions therein required. State v. Hughes, 2 H. & McH. 322. Bishop says, however, that in a more extended report of that case by Kilty, it is said: “ A reference was made by one of the judges to several acts of assembly in which the process of outlawry was mentioned.” 1 Bishop’s Crim. Proc., Sec. 674, note 2.

The question does not appear to have again arisen, and the statute was expressly repealed by act of legislature as late as 1852. See statement in Hammond v. State, 14 Md. 135.

Its existence was recognized also in the following States: Pennsylvania, New Hampshire, Maine and Virginia. Report of Judges, 3 Binney, 595, 614; Com. v. Jackson, 2 Grant’s Cas. 262; State v. Moore, 14 N. H. 451; State v. Bishop, 15 Me. 122; State v. Nelson, 29 Me. 329, 334 (stating statutory change) ; Com. v. Sims, 2 Va. Cas. 374; Com. v. Clark, Idem, 401. In the last case decided in Virginia (A. D. 1823) it was said that the statute had been re-enacted in that State February 26,1819, except in so far as the estate or degree “ are inconsistent with the principles of our government.” In Kentucky it was re-enacted in 1796, but is “ expressly confined to indictments in which the exigent may be awarded and outlawries pronounced.” Com. v. Rucker, 14 B. Monroe, 184. And for that reason its application to the indictment in that case was denied.

Despite these supporting authorities, we cannot agree that this statute was in force and effect in Maryland, after the Devolution, in controlling the forms of indictments; and that, as such, it was continued in force in the District of Columbia by the act of Congress of February 27, 1801.

The statute was passed in mitigation of some of the evils of the cruel process of outlawry that, at certain stages of proceedings, civil and criminal, followed the failure of the defendant to appear, and was enacted in answer to petitions that no man might be outlawed without his sur-name, and the name of his town and county.

The object of the statute was to enable the person against whom the process ran, to be identified and thus prevent oppressions that had formerly resulted from want of certainty of description. 2 Reeves’ Eng. Law (Finlason), 519, 520; 4 Bl. Com. 306. See also Morgan v. State, 15 Ala. 556, 559; Com. v. Rucker, 14 B. Monroe, 184; State v. McDowell, 6 Blackford, 49.

The exigent was the first process in outlawry and the statute, it will be observed, is limited to cases “ in which the exigent shall be awarded.”

Founded, then, on distinctions of estate and condition — i. e., rank in life — and intended to operate only where outlawry might be declared, the life of the statute passed with the sudden subversion of rank and the gradual disappearance of the barbaric process of outlawry. No conditions whatever remained to furnish foundations for its application or operation. 1 Bishop’s Crim. Proc., Sec. 673; State v. McDowell, 6 Blackford, 49; Com. v. Rucker, 14 B. Monroe, 184; Morgan v. State, 15 Ala. 556, 559.

It is possible, also, that some reasons for the requirement, in ancient indictments, of the additions of estate or condition, and mystery (i. a., trade or occupation), inhered in the special privileges of barons and knights to be arraigned by and before their peers, as well as in the benefit of clergy that was extended to certain ranks and other privileged persons.

It is proper to add, that, if we were inclined to the view that the aforesaid statute was in force in this District, because not expressly repealed, we would, nevertheless, sustain the indictment, for the reason that we could not agree to the contention that the averment of the addition was made, and must, therefore, necessarily, continue to be regarded as, matter of substance and by no means of form. Being matter of form, it would be cured by tbe provisions of section 1025, E. S.

3. The last objection to tbe indictment is to tbe want of particularity in tbe allegation of tbe place of the commission of tbe crime. It alleges that tbe offense was committed in tbe District and in a certain house situated therein, but omits the precise locality of tbe bouse. Tbe contention is that tbe location of tbe said bouse should have been averred, if not by square, street and number, at least by situation in tbe county or in tbe city of Washington, and by section thereof. Considering tbe nature of tbe offense charged in tbe indictment we see no reason for such particularity of statement. Tbe allegation of place is necessary only as fixing tbe venue. It has no relation to tbe fact and constitutes no part of tbe description of tbe offense. In England, and anciently, tbe averment of tbe particular 'hamlet, township or place in tbe county was important because in tbe early days of jury trial, the jurors, for reasons directly opposed to those controlling tbe modem practice, were always summoned from tbe vicinage.

In and before Blaekstone’s time, tbe allegation of tbe particular township or place bad become immaterial, that is to say, a mistake therein, like that in date, was immaterial, provided tbe place was within tbe jurisdiction of tbe court. 4 Blackst. Com. 306.

In this country it has been generally held that an indictment is sufficient which avers tbe commission of tbe offense in tbe jurisdiction of tbe court without specification of tbe particular locality. See cases cited on tbe brief of tbe District Attorney, and in Ledbetter v. United States, 170 U. S., at pp. 613, 614.

Certain language in tbe opinion in tbe last-mentioned case is relied on by counsel for tbe appellant, as showing •the rejection, by tbe Supreme Court of tbe United States, of the doctrine above stated. The indictment was for carrying on tbe business of a retail dealer in liquors without license, “ in tbe County of Appanoose in tbe Southern District of Iowa and within tbe jurisdiction of this court.”

Objection to the want of particularity of place was not taken by motion to quash, or on the trial, but by motion in arrest of judgment, and the court held that it was properly overruled. In the opinion, it was said: “Properly speaking, the indictment should state not only the county, but the township, city or other municipality within which the crime is alleged to have been committed. But the authorities in this particular are much less rigid than formerly.” Then, after referring to the reasons which in England dictated such particularity until abolished by statute, as well as to the American eases on the point, the opinion concluded in these words: “ We do not 'wish to be understood as approving the practice that was pursued in this case, or even as holding that this indictment might not have been open to special demurrer for insufficiency as to the allegations of time and place, but upon motion in arrest of judgment we think it is sufficient.”

This intimation of dissent from the doctrine of the cases that had been cited, if such it can be called, must necessarily be viewed in the light of the particular case under consideration. The carrying on of the business charged, implied continuing acts, for a time at least, at some certain place of business. Oases of the kind might be imagined where it would be unfair to charge the commission of the offense in a great county merely, when the particular place implicated by the evidence on which the bill was found, must necessarily be within the knowledge of the grand jury.

Situations might be imagined as likely to occur in some such classes of cases that would, by analogy, .bring them within the rule applicable to those offenses where time and locality may both, in greater or less degree, enter into the description.

In this case, the locality of the house had no relation whatever to the offense charged, and failure to aver it could by no possibility have misled the defendant or prejudiced his defense. '

4. The next error in order of assignment asserts the insufficiency of the evidence to show either that the deceased died in the District of Columbia, or that her death was the result of a How inflicted by the accused.

(1) There was direct proof that the injuries of deceased were received in the District of Columbia, and that she died in the Columbian Hospital. Former evidence of her removal to that hospital, before death, showed it to be situated in the District.

The consideration of this point, it may be added, is not intended to convey an intimation that the offense would be either complete or incomplete, in our opinion, without proof of the death, as well as the infliction of the injury resulting therein, in the District of Columbia. In our view of the testimony, that question could not arise.

(2) A brief statement of the general purport of the evidenoe, relied on by both prosecution and defense, has been given above, and we think it unnecessary to review it here. It is sufficient to say that there was evidence tending to establish the necessary facts from which, if believed by them to be true beyond a reasonable doubt, the jury had a right to find that a blow unlawfully given by the accused was the proximate cause of the death of the deceased.

We have nothing to do with the credibility of the witnesses and the respective weight of their testimony. These were passed upon by the jury and their verdict was approved by the justice who presided at the trial.

We are of the opinion that the court did not err in refusing to direct a verdict of not guilty.

5. We come now, in conclusion, to examine certain other exceptions taken to the action of the court in giving and refusing instructions to the jury upon the law applicable to the evidence submitted for their consideration.

(1) The court instructed the jury that it was not necessary for the Government to prove a motive; but that absence of proof of motive might be considered as -a circumstance in defendant’s favor. In this there was no error. Pointer v. United States, 151 U. S. 396, 413, 414.

(2) Nor was it error to refuse a special instruction to the effect that, if it were probable the deceased came to her death from any other cause whatever than from violence inflicted upon her by defendant, they should find him not guilty; because in addition to a general charge showing the necessity of proof beyond a reasonable doubt, the court has also given nine elaborate special instructions on the subject, at request of defendant, which more than covered every phase of the case. The following is one of these: “ The jury are further instructed that if after a full, careful consideration of all the evidence introduced before them that the death of Mrs. Betty L. Wren may be accounted for on any other hypothesis whatever, than that she came to her death as a result of injuries inflicted by the defendant, then it is the duty of the jury to acquit the defendant.” The court was more than liberal in respect of the right of the accused to the benefit of his presumption of innocence, until removed by evidence beyond all reasonable doubt. Wallace v. United States, Present Term.

(3) The last special prayer refused reads as follows:

“ 19. The court instructs the jury that while as a matter of law voluntary drunkenness is not within itself a defense for a crime committed, and yet if the jury in this case should be satisfied from the evidence that the defendant did strike the deceased, Bettie L. Wren, while in a state of intoxication, they are authorized to take the fact of his intoxication into consideration in determining the character of the crime committed and the grade of punishment which should be inflicted, as explained in other instructions given by the court in this case.”

The contention is that this prayer was a proper instruction to the jury upon the following grounds.— First: The jury had a right to take into consideration the intoxication: of the accused in the exercise of their power, by recommendation in their verdict, to reduce the sentence for murder from death to imprisonment for life.

Second: That intoxication may be considered in determining the character of the crime committed.

Were the soundness of the first ground conceded, the error would be harmless, because the accused was not convicted of murder, but of manslaughter only.

The second ground is inadmissible. We have heretofore determined, upon full consideration, that “ voluntary intoxication is neither an excuse nor a palliation for crime.” Harris v. United States, 8 App. D. C. 20, 26.

Having found no error in the proceedings on the trial the judgment will be affirmed. It is so ordered,

Affirmed.