Appeal from the District Court of the United States for the Hammond Division of the Northern District of Indiana; Thomas W. Slick, Judge.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
The section of the statute under which this indictment is drawn defines more than one offense. That part upon which the indictment is based constitutes the last paragraph of the statute (18 USCA § 121) and is as follows: "Whoever shall use any deadly or dangerous weapon in resisting any person authorized to make searches or seizures, in the execution of his duty, with intent to commit a bodily injury upon him or to deter or prevent him from discharging his duty, shall be imprisoned not more than ten years."
It will be necessary, however, to refer to the preceding part of the statute and it is set forth in the margin.*fn1
After laying the proper jurisdiction the indictment charges: "That Edward R. Bowles and Seth Cole * * * on or about the 7th day of June, A.D., 1930, did, in and by the use of a deadly weapon, to-wit; a certain revolver * * * unlawfully, willfully, knowingly, and feloniously resist one Harry D. Anheier and one Arthur L. Allen, who were then and there federal prohibition agents, then and there engaged in the execution of their official duties and whose duty it was to make search and seizure in cases of violation of the National Prohibition Act and the Internal Revenue Laws of the United States and who were duly authorized to make searches and seizures under the said laws, the official character and the official duties * * * were then and there well known to said defendants and each of them, with the intent, then and there on the part of said defendants and each of them to commit bodily injury upon the said prohibition agents and to deter and prevent them from discharging their said duties."
The sufficiency of the indictment was in no manner questioned by appellant or Cole before the verdict.
Appellant contends that the indictment does not charge an offense under the statute, because (1) it does not directly allege that agents, at the time of the altercation, were engaged in making a valid search and seizure, nor does it allege facts which warrant such conclusion; and (2) it does not allege that appellant, at that time, knew that agents were then making a search or seizure.
Appellant's objections to the validity of the indictment are based upon the theory that the statute under which appellant was convicted is merely an aid to the power of search and seizure, and upon that theory he insists that absence of the allegations referred to in his objections, or either of them, renders the indictment invalid. He cites the following authorities in support of his contention, and as being the only authorities in which the various courts have considered the necessity of any allegation relating to search and seizure: Hlabse v. United States (C.C.A.) 20 F.2d 482; Cooper v. United States (C.C.A.) 299 F. 483; Wheeler v. United States (C.C.A.) 293 F. 588, 589; United States v. Page (D.C.) 277 F. 459; United States v. Hallowell (D.C.) 271 F. 795; United States v. Pitotto (D.C.) 267 F. 603.
In each of the authorities cited the validity of the indictment was tested by demurrer or by motion to quash. In the instant case, however, the indictment stands unchallenged, with the exception that appellant seeks to raise the question of invalidity by his motion in arrest of judgment, and by invoking Rules 11 and 23 of this court, which relate to plain but unassigned errors.
United States v. Page, supra, is a District Court case in which the first count of the indictment was based upon the first part of the statute now under consideration, and the second count was based on the last paragraph of that statute, as is the instant case. The court sustained a demurrer to each count, because in the first count there was a failure to allege that the defendants knew that the persons assaulted were prohibition officers, and the second count did not allege that the officers were engaged in a duty even remotely connected with searches or seizures. The court in that case further said: "This case calls for no expression of opinion as to the exact limits of the protection afforded by the last clause of section 65. It may well be that the statute applies while an officer is on his way to make a search, or while he is returning from making a seizure and in possession of the fruits thereof."
In Wheeler v. United States the appellant was charged and convicted under section 65, supra, with having assaulted an internal revenue officer while he, in the execution of his duty, was engaged in making search for persons having in their possession and transporting and conveying illicit spirits, to-wit, whisky. A demurrer was filed to the indictment on the ground that it did not allege that the officer had a search warrant. The District Court overruled the demurrer, and the Circuit Court of Appeals, in affirming the decision, used the following language: "It was not necessary either to allege or to prove that the revenue officer was armed with search warrants while he was on the public highway in an effort to ascertain whether the law was being violated by persons having in their possession or transporting intoxicating liquors. The question of the right to search automobiles for the purpose of arresting persons violating the prohibition law is not involved. That question could be raised only by persons whom the officers might have attempted to search. It was of no concern to the defendant, against whom the right to make such a search was not asserted. The contention that an officer cannot be engaged in the performance of his duty to prevent violations of the prohibition law unless he is armed with a search warrant is without merit. National Prohibition Act, tit. 2, § 26 (41 Stat. 315 [27 USCA § 40])."
In Cooper v. United States appellant was indicted under section 65, supra, for the rescue of property seized by a deputy collector of internal revenue and a prohibition officer. The court held that there could not be an unlawful rescue unless there was a lawful seizure, and that such seizure must be shown in the indictment by allegations of fact, and not by conclusions. Because the indictment did not contain such allegations of fact, the Circuit Court of Appeals reversed the trial court for overruling the demurrer.
In United States v. Pitotto, supra, a District Court case, appellee was indicted for resisting officers authorized to make searches and seizures. The officers were making a search and seizure under a search warrant at the time of the alleged resistance, but the indictment alleged no facts from which it could be said that the ...