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UNITED STATES v. FRANKFELD

May 7, 1941

UNITED STATES
v.
FRANKFELD; SAME v. BLUMBERG; SAME v. O'DEA



The opinion of the court was delivered by: LETTS

Several motions have been heard in the above entitled cases which are here ruled upon.

In the case of Frankfeld, No. 65799, and that of O'Dea, No. 65802, the defendants filed motions to quash, to which motions the District Attorney has filed his motions to strike parts thereof. In each case the motion to strike is sustained, largely upon the ground that the portions struck are irrelevant, impertinent, and immaterial. A motion to quash is addressed to the discretion of the court.

 An indictment may be quashed for any reason which would render ineffective a trial had upon the accusation as formulated. If any fact or facts appear which would make it improper to enter judgment upon a verdict found at such trial or would afford ground for reversal of such judgment, such facts will warrant quashing the indictment. Grounds for that action may be either matters intrinsic to the pleading as defects apparent upon its face or matters extrinsic to the instrument, as irregularities or other facts occurring prior to the return of the bill.

 An indictment is quashed upon the theory that the facts charged therein are insufficient to put the accused upon his defense. I find that the questions raised by the motions to quash can be considered properly and more definitely at the time of trial; accordingly the motions to quash are overruled.

 In the case of Blumberg, No. 65800, the defendant has presented his petition to suppress. The court finds that the papers seized were taken in the improper use of a subpoena duces tecum. The agents who served the subpoena treated it as though it were a search warrant. The papers and records were unlawfully seized. Accordingly Blumberg's petition to suppress is sustained.

 A demurrer was filed by each of the defendants in the above entitled cases. Arguments have been heard for and against the propositions presented by the demurrers. I am satisfied that the indictments are in proper form and allege a crime in each case. Each of such demurrers is now overruled.

19410507

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