Polen v. United States

U.S. Court of Appeals for the D.C. Circuit November 3, 1913

Polen v. United States, 41 App. D.C. 4 (D.C. Cir. 1913)

1913 U.S. App. LEXIS 1966

Opinion of the Court

Mr. Chief Justice Shepard

delivered the opinion of the Court:

We perceive no uncertainty in the language used; nothing whatever that could mislead the defendants as to the offense with which they are jointly indicted.

It is not necessary to the charge of a joint assault by several persons, that they be specifically charged as acting “together and with each other.” Loggins v. State, 32 Tex. Crim. Rep. 358, 24 S. W. 408; 2 Bishop, New Crim. Proc. sec. 411.

The third count charges that the dangerous weapon with which the assault was committed was held in the hand of George Barton, one of the defendants. The verdict against Polen under this count was virtually set aside because he was adjudged guilty and sentenced under the fifth count only, which charged him with holding the brick.

The exception to the count, howeyer, was not well taken. *7The defendants were charged as principals. They were acting together, and the act of one was the act of each. The question is set at rest by sec. 908 of the Code* [31 Stat. at L. 1337, chap. 854].

People v. Outeveras, 48 Cal. 19, 23; People v. Bliven, 112 N. Y. 79, 83, 8 Am. St. Rep. 701, 19 N. E. 638; State v. Hessian, 58 Iowa, 68, 70, 12 N. W. 77; Noble v. People, 23 Colo. 9, 13, 45 Pac. 376; Spies v. People, 122 Ill. 1, 101, 3 Am. St. Rep. 320, 12 N. E. 865, 17 N. E. 898, 6 Am. Crim. Rep. 570.

Under that section the indictment was unnecessarily elaborate.

The judgment is affirmed. Affirmed.

Sec. 908, D. C. Code, reads as follows: “Persons Advising, Inciting, or Conniving at Criminal Offense to be Charged as Principals. — In prosecution for any criminal offense, all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals, and not as accessories, the intent of this section being that as to all accessories before the fact, the law heretofore applicable in eases of misdemeanor only shall apply to all crimes, whatever the punishment may be.” — Reporter.

Reference

Full Case Name: POLEN v. UNITED STATES
Cited By: 2 cases
Status: Published
Syllabus: Criminal Law; Indictment; Joint Assault With One Weapon; Principals. 1. Where each of the counts of an indictment against several defendants charges all of the defendants with assault with a single weapon, it is not defective for uncertainty as an indictment for a joint assault, merely because the respective counts charge different defendants with having held the -weapon. 2. A count of an indictment, charging three named persons with committing an assault with a weapon in the hands of one of them, is not defective as charging a physical impossibility in respect of one who is not charged with having held the weapon, since, when persons act as principals, the act of each is the act of the others. (Citing sec. 908, Code, D. C. [31 Stat. at L. 1337, chap. 854].)