TERRY v. UNITED STATES, 120 F. 483

BOYD, District Judge (after stating the facts). It is not necessary to discuss the question raised by the first exception — the refusal of the court to require the district attorney to elect — as we think that was a matter within the discretion of the district judge.

The general rule is that an election will not be compelled when the several counts of the indictment have been inserted in good faith for the purpose of meeting the evidence as it may transpire, the offenses charged, though technically different, being of the same general nature, substantially for the same offense, arising out of the same transaction, and concerning which the same testimony must be relied upon for conviction. Such is the case we are now considering.

In the second exception and assignment we find an important question, one materially affecting the rights of the plaintiff in error, and that is whether or not the allegations in the count upon which he was convicted are sufficient in law to charge a criminal offense. It is true that the plaintiff in error did not make a formal motion in arrest of judgment for this defect, but he requested the court to set aside the verdict because it was contrary to the law, and he also insisted that the court erred in entering up final judgment upon the said verdict.

The plaintiff in error, who is a layman and not presumed to be familiar with the technical forms of pleading, was evidently intending to ask the court to give him the benefit of such legal rights as he might be entitled to under the circumstances, and it is but fair to him to so construe his action. We think, therefore, that the court should have taken notice of the form of the indictment,-' and, if found to be defective, should have declined to pronounce judgment.

It is our conclusion, therefore, that we ought to treat the plaintiff in error’s second exception and assignment as in substance a motion in arrest of judgment after verdict, and, if it is found that matter intrinsic appears on the face of the record which would render the judgment, if given, erroneous or reversible, or if it would have been fatal to 'the indictment on general demurrer, to give him the benefit of it.

The count upon which the plaintiff in error was convicted reads as follows: “And the' grand jurors aforesaid, upon their oaths aforesaid, do further present that at the time and place, and within the jurisdiction aforesaid, the said J. O.

Terry unlawfully and knowingly did carry and deliver, to wit, raw material to a distillery on which no sign bearing the words ‘Registered Distillery’ was placed and kept as required by law, contrary to the statute in such cases made and provided, and against the peace and dignity of the United States.” The law making it indictable to furnish raw material to distilleries is, as stated before, to be found in

section 3279 of the Revised Stat-* ules [U. S. Comp. St. 1901, p. 2126]. In the beginning of that

section we find the following: “Every person engaged in distilling or rectifying spirits and every wholesale liquor dealer, shall place and keep conspicuously on the outside of the place of such business a sign exhibiting in plain and legible letters, not less than three inches in length, painted in oil colors or gilded, and of a proper and proportionate width, the name or firm of the distiller, rectifier or wholesale dealer, with the words ‘Registered Distillery,’ ‘Rectifier of Spirits’ or ‘Wholesale Liquor Dealer,’ as the case may be.” And in the latter part of the said

section it is provided as follows: “And every person * * * who knowingly carries and delivers any grain, molasses or other raw material to any distillery on which such sign is not placed and kept, shall forfeit all horses, carts, drays, wagons or other vehicles used in conveying such property aforesaid, and shall be fined not less than one hundred dollars nor more than one thousand dollars, or be imprisoned not less than one month nor more than six months.” It will be observed that, in the outset, this

section describes the business to be engaged in to be that of distiller, rectifier of spirits, or wholesale dealer in liquor, and it is upon this business that the sign required by law is to be placed and displayed. This indictment does not charge that this was a distillery for the production of spirits, and does not distinguish the establishment from any other distillery. There are other distilleries operated in this country besides those for the production of spirituous liquor.

Neither does this indictment charge any particular kind of raw material as having been furnished to the distillery, but simply states that J. O. Terry “willfully and knowingly did carry and deliver, to wit, raw material to a distillery.” In distilleries for the production of spirituous liquor various kinds' of raw material are used, such as the meal from corn, rye, and barley, and also molasses and malt.

In fruit distilleries for the production of spirituous liquors the kinds of raw material used are probably more, numerous, for they include apples, peaches, many kinds of smaller fruits, and in some instances brandy is made from oranges and apricots. Is this indictment, therefore, sufficient in law to charge a criminal offense? In the Cruikshank Case, 92 U. S. 552, 23 L. Ed. 588, the court says: “In criminal cases prosecuted under the laws of the United States, the accused has the constitutional right ‘to be informed of. the nature and cause of the accusation.’ Amendment 6. In U. S. v. Mills, 7 Pet. 142, 8 L.

Ed. 636, this was so construed to mean that the indictment must set forth the offense ‘with clearness and all necessary certainty of apprising the accused of the crime with which he stands charged,’ and in U. S. v. Cook, 17 Wall. 174, 21 L.

Ed. 538, that ‘every ingredient of which the offense is composed must be accurately and clearly alleged.’ It is an elementary principle of criminal pleading that where the definition of an offense, whether it be at common law or by statute, ‘includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition, but it must state the species — it must descend to them particularly.’ 1 Arch. Cr. Pr. & Pl. 291.

The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense and avail himself of conviction or acquittal for protection .against a future prosecution for the same cause; and, second, to inform the court of the facts, so that it may decide whether they are sufficient in law to support conviction if one should be had. For this facts are to be stated, not conclusions of law alone.

A crime is made up of acts and intentions, and these must be set forth in the indictment with reasonable particularity of time, place, and circumstances.” Without quoting other authorities in support of these principles as to the sufficiency of indictments, does the indictment here comply with the requisites as set forth in his case? We think not.

The indictment in the case from which the above is quoted charges certain persons with having banded and conspired to injure, oppress, and intimidate citizens of the United States of African descent, therein named, and thereby to hinder and prevent such citizens in the free exercise and enjoyment of rights and privileges granted and secured to them by the Constitution and laws of the United States, etc. The Supreme Court held that this indictment was not sufficient; that it should have charged specifically the particular right or privilege which was intended to be interfered with.

The term “raw material,” such as is used in distilleries of spirituous liquors, as above shown, includes material of various kinds, and it was due to the plaintiff in error that the indictment should set forth particularly the kind of raw material which was furnished, in order that the court might see whether or not it was such material as could be utilized in. a distillery for the production of distilled spirits.

Aside from this, how could the plaintiff in error go into trial unembarrassed, and with a fair opportunity to defend himself, when he was not put upon notice as to the particular kind of material he was charged with furnishing, or the character of the distillery to which he carried it? How, upon the face of this record, if he were again indicted for the same offense, could he plead and avail himself of a former conviction? We think that the judgment should have been arrested after verdict, and therefore we now direct that it be reversed.