Kellerman v. United States

¶28WOOLLEY, Circuit Judge.

¶29The jury convicted Kellerman for promising to pay to a United States Customs Storekeeper, and for actually paying him, a sum of money for the key and seal of a whisky warehouse, in violation of Section 39 of the Criminal Code1 Act of March 4, 1909, c. 321, § 39; 35 Stat. 1096; R. S. 5451, Comp. St § 10203. After conviction, Kellerman made a motion in arrest of judgment on the ground that the indictment does not state an offense within the statute. The court denied the motion and imposed sentence. The case is here on the defendant’s writ, assigning error in *798this one act of the court and thereby raising the single question of the sufficiency of the indictment.

¶30We shall first discuss very briefly the Government’s opposition to a review of a question of this kind when raised for the first time by motion in arrest of judgment.

¶31[1-7] A motion in arrest of judgment is based on the principle that a court should not let a verdict go to judgment when it appears from the record that the judgment, if entered, would be unlawful. The matter which vitiates the proceedings and would render the judgment erroneous, if given, must be material, and must appear on the face of the record. This does not include the testimony. Albert v. United States (C. C. A.) 281 Fed. 511, 514. It does, however, include'the indictment, on challenge to the sufficiency of which a trial court may entertain such motion, United States v. Marrin (D. C.) 159 Fed. 767, 167 Fed. 951, 93 C. C. A. 351; and an appellate court may review its action, Krichman v. United States, 256 U. S. 363, 364, 41 Sup. Ct. 514, 65 L. Ed. 992; Clark v. United States (C. C. A.) 265 Fed. 104. Motions in,arrest of judgment are not favored. In considering them, courts in civil actions liberally, construe the pleadings, giving the plaintiff the benefit of all implications. Baker v. Warner, 231 U. S. 588, 592, 34 Sup. Ct. 175, 58 L. Ed. 384. In criminal actions, however, where implications are carefully guarded, the pleadings — in this instance the indictment — áre subject to the same scrutiny and are governed by the same rules as though attacked upon the trial. Certain defects in an indictment are cured by verdict or by plea of guilty. These are such as run to form. Verdict or plea of guilty does not cure defects in substance, as, for instance, the omission of one or more of the essential elements of the offense it is intended to charge. Shilter v. United States, 257 Fed. 724, 725, 169 C. C. A. 12. Giving no thought to the evidence, we shall inquire whether the indictment, by its terms, states a case within the statute.

¶32The two counts are alike except that one alleges a promise to pay money and the other an actual payment. The pertinent part of the first count is that Kellerman—

“did knowingly, wilfully and unlawfully promise and offer a certain sum of money, to wit, the sum of one thousand dollars, to one Luther Sterner, United States Customs Storekeeper, acting under and by authority of the Treasury Department of the United States, the said Luther Sterner having been duly appointed and thereafter took an oath to faithfully perform all the duties of the said office; the said George Kellerman by said promise and offer intending to induce the said Luther Sterner to do an act in violation of his lawful duty as such United States Customs Storekeeper, to wit.”

¶33[8-10] Being based on a statute defining an offense generally, the count to be good must show an offense within tire statute, not in the same generic terms as in the definition “but it must state the species,— it must descend to particulars.” United States v. Cruikshank, 92 U. S. 542, 558 (23 L. Ed. 588). The statute denounces, first, bribery of “any officer of the United States.” ■ The count fails to allege, or otherwise show, that Sterner was such an officer. In this it is not sufficient. But the statute reads in the disjunctive and denounces, second, bribery of “any person acting for or on behalf of the United *799States in any official function.” The count, however, does not allege that Sterner was acting “for or on behalf of the United States” and, as before noted, having failed to hllege that he was an “officer of the United States,” it does not show what were the official duties Keller-man induced Sterner to violate; in other words, it does not disclose what was his “official function.” Here again the count is defective. Continuing, the count alleges in the language of the statute that Sterner, a “United States Customs Storekeeper,” was acting “under (and) by authority of the (Treasury) Department of the” United States; but as it had not alleged that Sterner was either an “officer of the United States” or a “person acting for or on behalf of the United States in any official function,” this averment does not disclose whether Sterner comes within or stands outside the particular class of government employes which the statute cqntemplates. That all persons in the government employ are not within its terms has often been decided. United States v. Birdsall, 233 U. S. 223, 34 Sup. Ct. 512, 58 L. Ed. 930; Krichman v. United States, 256 U. S. 363, 367, 41 Sup. Ct. 514, 65 L. Ed. 992. Unless Sterner was an “officer of the United States” or a “person acting for or on behalf of the United States in (an) official function,” Kellerman's act of promising to pay him money to violate his duty, whatever the offense, was not the offense condemned by the statute under which Kellerman was brought "to trial. In order therefore to sustain Kellerman’s conviction for the offense described in the statute, the office or the official function of the one to whom the bribe was offered, as a person within the class described by the statute, are facts which must be alleged in the indictment and proved upon the trial. Heaton v. United States (C. C. A.) 280 Fed. 697, 699; Krichman v. United States, supra. For these are essential ingredients in the offense. United States v. Cook, 17 Wall. 174, 21 L. Ed. 538. Of the same opinion, evidently, was the learned trial judge, but he thought they were implicit in the language of the indictment. Our view, however, is that; being elements of the offense, the indictment should, in reference to them, be explicit. United States v. Cruikshank, 92 U. S. 542, 557, 558, 23 L. Ed. 588. This is so because of the general rule, re-announced by the Supreme Court in Pettibone v. United States, 148 U. S. 197, 202, 13 Sup. Ct. 542, 545 (37 L. Ed. 419) “that all the material facts and circumstances embraced in the definition of the offense must be stated, and that, if any essential element of the crime is omitted, such omission cannot be supplied by intendment or implication. The charge must be made directly and not inferentially, or by way of recital. United States v. Hess, 124 U. S. 483, 486.” United States v. Cruikshank, 92 U. 3. 542, 557, 558, 23 L. Ed. 588.

¶34The judgment below is reversed and a new trial awarded.

¶35BUFFINGTON, Circuit Judge, took no part in this decision.