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An indictment for murder must allege the place of the death of the person murdered. Where the criminality of language depends upon its probable effect the indictment should aver the place where it was spoken, and the attendant circumstances.3

The place where a conspiracy was formed need not be alleged if the indictment is found in a district where an overt act therein alleged was committed.4

It was held that an indictment was bad which alleged that the defendants had conspired at two specified places in different districts; since the pleading did not show in which the offense charged was committed."

§ 497e. Allegations of intent in indictments. When the statute makes the criminality depend upon scienter, knowledge or intent, such knowledge,1 or intent, as the case may be, must be averred.2 Otherwise it is said not.3

In indictments for crimes which are felonies at common law and in statutory crimes of which a felonious intent is an essential part, the adverb "feloniously" must be used. When a statute creating a new offense uses the word, felony, to describe the punishment rather than the crime, the adverb need not be pleaded.5

The law presumes an intent on the part of the defendant to do the things which are the natural result of his wrongful acts.6 It has been said that there is no need of specifically charging a

2 Ball v. U. S., 140 U. S. 118, 35 L. ed. 377.

3 Fontana v. U. S., C. C. A., 262 Fed. 283. Contra, Grubl v. U. S., C. C. A., 264 Fed. 44.

4 Hyde v. U. S., 225 U. S. 347, 56 L. ed. 1114; Brown v. Elliott, 225 U. S. 392, 56 L. ed. 1136.

5 U. S. v. Mar, 122 Fed. 964. § 497e. 1 U. S. v. Carll, 105 U. S. 611, 26 L. ed. 1135; U. S. v. Slenker, 32 Fed. 691. Such an allegation is essential in an indictment for desertions under Act of May 18, 1917, 40 St. at L. 80, §§ 1-15, Comp. St., $ 2044a-2044k.

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2 Luckenbach S. S. Co. v. W. R. Grace & Co., C. C. A., 267 Fed. 681; U. S. v. Conant, 9 Reporter, 36, 25 Fed. Cas. No. 14,844; U. S. v. Jackson, 2 Fed. 502; U. S. v. Jackson, 25 Fed. 548.

3 U. S. v. Jackson, 25 Fed. 548. 4 Bannon v. U. S., 156 U. S. 464, 39 L. ed. 494; Wood v. U. S., C. C. A., 204 Fed. 55.

5 U. S. v. Staats, 8 Howard 41, 12 L. ed. 979.

6 Crawford v. U. S., 212 U. S. 183, 53 L. ed. 465; Neall v. U. S., C. C. A., 118 Fed. 699; Billingsley v. U. S., C. C. A., 178 Fed. 653.

criminal intent when facts are set forth from which an intent is clearly implied."

When language does not constitute a crime, if uttered under some circumstances, but does, if uttered under others, it is not enough for an indictment to charge that the language was used with intent to violate the law.

The indictment must show that the intent charged was in the mind of the defendant and not use language from which it might be deduced that it was in the mind of a third party only.9

The adverb "feloniously" need not be repeated with each verb when the verbs are joined conjunctively.10 Where an indictment for murder contains a charge of an assault followed by a description of the acts of which the assault consisted, alleging that these were committed "feloniously and with malice aforethought." It is sufficient, although this phrase is not immediately used in the allegation of an assault.11

Equivalents of the adverbs contained in the statutory description of the crime may be used.12 An indictment alleging that an act was done "knowingly, willfully, unlawfully and feloniously" sufficiently charges criminal intent.18 The word "wanton" includes all willful acts or conduct which is reckless of its consequences.14 It has been held that fraudulently is implied by the use of the phrase "corruptly and willfully." 15 It has been said that the words "feloniously" and "unlawfully" will supply the place of the word "willfully.'

16

"Willfully" describes the conduct of a man who either intentionally disregards the law or is clearly indifferent to its requirements.17

7 Bridgeman v. U. S., C. C. A., 140 Fed. 577.

8 Fontana v. U. S., C. C. A., 262 Fed. 283.

9 U. S. v. Gooding, 12 Wheaton, 461 L. ed. 693.

10 St. Clair v. U. S., 154 U. S. 134, 38 L. ed. 936.

11 Holt v. U. S., 218 U. S. 245, 54 L. ed. 1021.

12 Nickell v. U. S., C. C. A., 161 Fed. 702; Tapack v. U. S., C. C. A.,

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"Unlawful" means not lawful.18 It does not necessarily mean contrary to law.19 An allegation that an act was done "unlaw. fully, fraudulently, corruptly and feloniously" is not equivalent to an averment that it was committed knowingly.20

It seems that an omission of the requisite adverb is a defect in form, which is cured if the point is not taken until after the trial.21

§ 497f. Pleading documents in indictments. A document or other written instrument, to which reference is made in the indictment should ordinarily be set forth verbatim, if it is part of the gist of the offense. When the paper is connected with the offense collaterally, a general description thereof is sufficient. In an indictment for a misapplication of the assets of a bank by means of a promissory note, or for making a fraudulent claim based upon a false writing, or for embezzling a letter containing a check,5 or for larceny of a paper; 6 a substantial description of the paper is all that is required.

4

In a count charging the making of a false entry in the report of a national bank the date of the report, the names of those who signed or verified it and the date and substance of the entry seem to be sufficient.”

When the tenor of a paper is set forth it controls any other description thereof.8 An averment that a document is "of tenor in substance as follows" is not contradictory nor are the words "tenor" and "in substance" repugnant.9 The

U. S. v. Stockyards Terminal Ry.
Co., C. C. A., 178 Fed. 19; St. Louis
Merchants' Bridge Terminal Ry. Co.
v. U. S., C. C. A., 209 Fed. 600.
18 MacDaniel v. U. S., C. C. A.,
87 Fed. 321.

19 Ibid.

20 U. S. v. Kelsey, 42 Fed. 882. 21 Rosen v. U. S., 161 U. S. 29. § 497f. 1 Grimm v. U. S., 156 U. S. 604, 39 L. ed. 550; U. S. v. Noelke, 1 Fed. 426; Shepard v. U. S., C. C. A., 160 Fed. 584.

2 Rosencrans v. U. S., 165 U. S. 257, 41 L. ed. 708; Whitehead v. U. S., C. C. A., 245 Fed. 385, 390.

3 Rieger v. U. S., C. C. A., 107 Fed. 916.

4 Bridgeman v. U S,, C. C. A., 140 Fed. 577.

5 Rosencrans v. U. S., 165 U. S. 257, 41 L. ed. 708.

6 Jones v. U. S., 27 Fed. 447.

7 Cochran v. U. S., 157 U. S. 286, 39 L. ed. 704; Harper v. U. S., C. C. A., 170 Fed. 385.

8 U. S. v. Marcus, 53 Fed. 785. 9 Whitehead v. U. S., C. C. A., 245 Fed. 385, 390.

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words "in substance" modify the word "tenor" and indicate that the contract is substantially as set forth in the indictment. which is consequently not thereby vitiated.10

Voluminous documents need not be set forth in full, where their substance is alleged. "To encumber indictments with voluminous documents, of which only small portions are needed for informing the accused or the court of the particularity and identity of the offense charged, tends to increase the mass of pleadings to an embarrassing extent without apparent advantage, and subjects the prosecutor to great danger of variance in unimportant details, to the defeat of justice." 12

When a paper contains indecent and obscene language, which it is not proper to spread upon the records of the court, such language can be omitted, provided the crime charged is so described as reasonably to inform the accused of the nature of the charge; and, in such a case, he may apply to the court before trial for a bill of particulars, 13 showing what parts of the paper are charged by the prosecution as being obscene.14

2

§ 497g. Bad grammar and spelling in indictments. An indictment is not vitiated by bad grammar,1 nor by bad spelling if the meaning is clear; nor by a solecism sanctioned by usage, the meaning of which is plain.3

§ 497h. Proper names in indictments. The defendant must be named in the indictment.1 His Christian or given name, as

10 Ibid.

11 U. S. v. French, 57 Fed. 382, 390. 12 Ibid.

13 See infra, § 522.

14 Rosen v. U. S., 161 U. S. 29, 40 L. ed. 606; Price v. U. S., 165 U. S. 311, 41 L. ed. 727; Dunlop v. U. S., 165 U. S. 486, 41 L. ed. 799; Bartell v. U. S., 227 U. S. 427, 57 L. ed. 583. A count giving the date of a letter and the first and closing sentences thereof, without' the name of the person to whom it was addressed, was held to be sufficient; but not one which stated no more than that the letter was "of a certain filthy and indecent character, that it contained a certain ar

ticle, designed, adapted and intended for preventing conception, and calculated to be used for and applied for an indecent and immoral purpose," without indicating even the date of the letter or the character of the article, whether it was a drug or a mechanical device. Winters v. U. S., C. C. A., 201 Fed. 845, 846, 847.

§ 497g. 1 Hume v. U. S., C. C. A., 118 Fed. 689, 695.

2 McCarty v. U. S., C. C. A., 101 Fed. 113, 114.

3 U. S. v. Howell, 11 Wall. 432, 436, 20 L. ed. 195.

§ 497h. 1 U. S. v. Upham, 43 Fed 68; U. S. v. Doe, 127 Fed. 982.

well as his surname, should be included. If the Christian name is unknown to the grand jury, he may be designated by the initials or by such other name as is known to them, or the Christian name may be omitted. The true name of the defendant is not essential if he is designated as he has been known by others. There must be a sufficient description of the defendant clearly to identify him.5 An indictment charging "John Doe, Chinese person, whose true name is to the grand juror aforesaid unknown, was held to be void for insufficiency of

description.6

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Third persons to whom reference is made in the indictment should be described by their names," or if the names are unknown, the indictments should so state. A person may be described by a name by which he was known.9 If he has been known by several names that should be selected which he bore at the time named in the indictment.10 Where the name proved is idem sonans with that stated in the indictment, the variance is immaterial.11

When the indictment refers to a company or association, it should state whether this is a partnership, then giving the names of the partners, or a corporation; 12 but an objection upon this ground should be raised by special demurrer.18 If not, it will be disregarded.14 The omission of the words designating its location from the name of a corporation is not a prejudicial error where the indictment identifies the location of the com

2 U. S. v. Upham, 43 Fed. 68.
3 Ibid.

4 U. S. v. Janes, 74 Fed. 543.
5 U. S. v. Doe, 127 Fed. 982.
6 Ibid.

7 U. S. v. Simmons, 96 U. S. 360, 24 L. ed. 819.

8 Ibid. But see U. S. v. Preth, C. C. A., 251 Fed. 946.

9 Bird v. U. S., 187 U. S. 119, 47 L. ed. 100.

10 Ibid.

11 Canady for Kennedy, James v. U. S., C. C. A., 170 Fed. 942; Faust for Foust, Faust v. U. S., 163 U. S. 452, 41 L. ed. 224; Krowder for Fed. Prac. Vol. III-29

Krower, Alexis v. U. S., C. C. A., 129 Fed. 60; Lumby for Lombard, Rogers v. U. S., C. C. A., 214 Fed. 981. It was held that there was no fatal variance between the names of Opal Clark and Jeanette Clark. Bennett v. U. S., 227 U. S. 333, 57 L. ed. 521; affirming C. C. A., 194 Fed. 630.

12 U. S. v. Larkin, C. C. A., 107 Fed. 697, 701. Contra, Morris v. U. S., C. C. A., 229 Fed. 516, 520. 18 U. S. v. Larkin, C. C. A., 107 Fed. 697.

14 Ibid.

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