1. A motion to quash, challenging the sufficiency of an
indictment in the light of a bill of particulars,
held not
special plea in bar within the meaning of the Criminal Appeals Act.
P.
296 U. S. 452.
2. A judgment sustaining such a motion is not reviewable under
the Act when it does not appear that it was based upon the
invalidity or construction of the statute upon which the indictment
was founded.
Id.
Appeal dismissed.
Appeal from an order quashing an indictment charging fraudulent
use of the mails.
See 4 F. Supp. 662.
PER CURIAM.
Defendants were indicted in the United States District Court for
the Eastern District of Wisconsin for violations of § 215 of the
Criminal Code, relating to fraudulent use of the mails. 18 U.S.C. §
338. Under order of the court, the government filed a bill of
particulars. 4 F. Supp. 662. Defendants then moved to quash the
indictment. The motion was based upon the indictment, the bill of
particulars, and an affidavit of defendants' counsel. The affidavit
was an argumentative review of the bill of
Page 296 U. S. 452
particulars for the purpose of showing that, in view of its
statements, the government would be "unable to make a case." The
court granted the motion to quash, and the government brought this
appeal under the Criminal Appeals Act. 18 U.S.C. § 682. Defendants'
motion to dismiss the appeal was postponed to the hearing on the
merits.
The District Judge rendered no opinion, but certified that
his
"decision and order quashing the indictment herein were not
based in any respect upon the invalidity or construction of § 215
of the Criminal Code upon which the indictment in said cause is
founded."
We find no basis for the contention that defendants' motion to
quash was in substance a "special plea in bar" within the meaning
of the Criminal Appeals Act.
See United States v. Storrs,
272 U. S. 652,
272 U. S. 654;
United States v. Murdock, 284 U.
S. 141,
284 U. S. 147.
The motion and the affidavit in its support challenged the
sufficiency of the indictment in the light of the bill of
particulars. As it does not appear that the decision of the
District Judge was based upon the construction or invalidity of the
statute upon which the indictment is founded, and as it may well be
that the decision was based upon the construction of the indictment
and its insufficiency as a pleading, this Court is without
jurisdiction of the appeal.
United States v. Carter,
231 U. S. 492,
231 U. S.
493-494;
United States v. Moist, 231 U.
S. 701,
231 U. S. 702;
United States v. Colgate, 250 U.
S. 300,
250 U. S.
301-302;
United States v. Hastings, ante, p.
296 U. S. 188.
Dismissed.