United States v. Olivieri Rivera

OdliN, Judge, delivered tbe following opinion':' In tbis ease shortly after tbe verdict of guilty, that is to say, on April 24, 1923, there was filed in tbe office of tbe clerk by tbe attorney for tbe defendant a motion in arrest of judgment based upon three grounds. Eirst, it is claimed that tbe indictment is duplicitous. Second, it is claimed that tbe indictment fails to state facts sufficient to constitute either abstraction or embezzlement of [118] funds belonging to a national bank, because tbe counsel for tbe defendant claims that conversion of tbe moneys of a national bank, either by this defendant, or by tbe employee of said bank wbo bad been previously convicted and whose name is Edwin Lavergne, such conversion being for bis own use and benefit, was not set up specifically by tbe indictment in this case, and that conversion is a necessary element in a criminal indictment under § 5209 of tbe Revised Statutes of tbe United States, Comp. Stat. § 9772, 6 Fed. Stat. Anno. 2d ed. p. 770. It is further alleged in tbe second paragraph of this motion that even if such conversion bad been alleged in this indictment, then tbe indictment would have shown an offense of misapplication,' but would not have shown an offense of embezzlement or abstraction ; and hence it is claimed that tbe indictment is demurrable on account of an alleged failure to charge a violation of said § 5209. Tbe third and last ground of tbe motion is that tbe indictment shows that tbe sum of $6,525 was taken out of the funds of tbe bank on November 16j 1922, while tbe evidence taken as a whole tends to show that 'the said amount of money was taken out about three months before that date, and therefore it is claimed that there is a fatal variance between tbe indictment and tbe evidence, and therefore there arose surprise and lack of opportunity to defend properly tbe accused because tbe court admitted such evidence over tbe objection of tbe accused and tbe defendant excepted thereto. , Tbe motion concludes with a prayer that tbe court arrest the judgment, set aside tbe verdict, and order an acquittal of tbe defendant non obstante veredicto, and .it also prays in tbe alternative for any.other remedy pursuant to lav?-, .... [119] This motion has been argued at length by counsel for the defendant, and also by the United States district attorney, not only orally but the court has been favored with written briefs very carefully prepared. I am of the opinion that this motion must be denied. I base my denial of this motion largely upon a decision rendered by the circuit court of appeals for the second circuit in the case of Wilson v. United States, decided June 23, 1921, reported in 275 Fed. page 307. There will be found a long and very interesting opinion written by Mr. Circuit Judge Rogers in which there concurred Circuit Judges Ward and Hough. The sole question presented in that case was as to sufficiency of the indictment. There will be found in the opinion of Judge Rogers the following language: “In this case the defendants went to trial without making any objection to the indictment. There was no motion to quash, no demurrer, no application for a bill of particulars. As they went to trial without any objection, now that they have been convicted they cannot come into this court to raise objections which must have been met at the trial. If the defects existed, and we do not think they did, they are defects which under the rule were cured by the verdict. It is the rule in criminal, as it is in civil, cases, that where an averment necessary to support a particular part of an indictment has been imperfectly stated, the defect is cured by the verdict if it appears to the court that unless the averment were true the verdict could not be sustained. Heymann v. Reg. L. R. 8 Q. B. 102, 12 Cox, C. C. 383, 28 L. T. N. S. 162, 21 Week. Rep. 357, 8 Eng. Rul. Cas. 126; Reg. v. Strougler, L. R. 17 Q. B. Div. 327, 16 Cox, C. C. 85, 55 L. J. Mag. Cas. N. S. 137, 55 L. T. N. S. 122, 34 Week. Rep. 719, 51 J. P. 278; State v. Ryan, 68 Conn. 512, 37 Atl. 377; State v. [120] Freeman, 63 Vt. 496, 22 Atl. 621. Tbe matters said to be indefinitely set forth could not have been proved as alleged unless the government produced all the evidence necessary to support the most careful pleadings.” It seems to me that the present case is very much like the case of Wilson. Ulises Olivieri Rivera, the present defendant, went to trial without making any objection to the indictment; he presented no motion to quash; he presented no demurrer; he presented no application for a bill of particulars. Therefore, since he has been convicted he should not now come into court and raise objections which must have been met at the trial. The defects upon which he now insists are, in my opinion, clearly cured by the verdict. Therefore it seems clear to me that I must deny this motion, and it is ordered that the said defendant be brought before this court by the marshal of this court' for sentence on Thursday, May 24, 1923, at 9 a. m. And it is further ordered that a copy of this opinion-be sent forthwith by the clerk to the attorney for said defendant. To this order and opinion the said defendant excepts. Done and Ordered in open court at San Juan, Porto Rico, this 21st day of May, 1923.