Rimkus v. United States

56 F.2d 52, 1932 U.S. App. LEXIS 2700

• Court: Court of Appeals for the Seventh Circuit
• Decided: February 26, 1932
• Docket: No. 4661
• Status: Published

Opinion

SPARKS, Circuit Judge

(after stating the facts as above).

The errors relied upon are: (1) The evidence is insufficient to support the verdict; (2) the fourth count does not allege an offense or crime against the United States and is insufficient to sustain the verdict and judgment; and (3) the verdict on the fourth count is so inconsistent with the acquittal on the other counts as to require a discharge of appellant.

The first error relied upon need not be considered at length. A perusal of the record leaves us in no doubt of there being some evidence in the record to support each material allegation of the fourth count, and sufficient to support the verdict. We cannot disturb the jury’s finding in this respect. Reid v. United States (C. C. A.) 44 F.(2d) 51; Talmadge v. United States (C. C. A.) 4 F.(2d) 378; Genna v. United States (C. C. A.) 293 F. 387; Applebaum v. United States (C. C. A.) 274 P. 43.

Appellant filed no demurrer to test the sufficiency of the fourth count, but attempted to raise the same question by his motion in arrest of judgment. It is sufficient upon a motion in arrest of judgment if the indictment substantially states the element of the crime charged. Harris v. United States (C. C. A.) 48 F.(2d) 771. As against such motion an informal or imperfect allegation of an essential faet will be deemed a sufficient averment of such faet. United States v. Dimmick (D. C.) 112 F. 352; Rev. St. § 1025 (18 USCA § 556); section 269 of the Judicial Code (28 USCA § 391).

The third error relied upon is without merit. Carrignan v. United States (C. C. A.) 290 F. 189; Dunn v. United States, 284 U. S. 390, 52 S. Ct. 189, 76 L. Ed.(decided by the Supreme Court January 11, 1932); Borum et al. v. United States, 52 S. Ct. 205, 76 L. Ed.-(decided by the Supreme Court January 25, 1932).

Judgment affirmed.