Opinion of the Court. 334 U. S.

This challenge again basically rests on the allegation that under New York law an indictment for receiving stolen property does not necessarily include a charge of an attempt to steal the property. Petitioner's motion to vacate on such a federal constitutional ground appears to be an available procedure under New York law,8 and the courts below so assumed. Determination of this federal due process question does not depend upon whether as a matter of New York law the Erie County judge erred in permitting petitioner to plead guilty.9 The question turns rather upon whether the petitioner under the circumstances here disclosed was given reasonable notice and information of the specific charge against him and a fair hearing in open court. In re Oliver, 333 U. S. 257, 273, 278; Cole v. Arkansas, 333 U. S. 196, 201. We agree with the New York courts that this petitioner had such notice and information. The fairness of the hearing afforded petitioner is not challenged.

There is close kinship between the offense of larceny and that of receiving stolen property knowing that it was stolen. When related to the same stolen goods, as here, the two crimes certainly may fairly be said to be "connected with the same transaction" as the New York Court of Appeals noted in the Wachowicz case. 293 N. Y. at 367, 57 N. E. 2d at 56. A person commits larceny under New York law if he "unlawfully obtains or appropriates" an article, N. Y. Penal Law § 1294; he violates the receiving of stolen property statute if he "in any way . . . conceals, withholds, or aids in concealing or withholding . . . property, knowing the same to have been stolen, or appropriated wrongfully in such a manner as to constitute

8 See cases cited note 7; Fuld, The Writ of Error Coram Nobis, 117 N. Y. L. J. 2212, 2230, 2248.

• See Caldwell v. Texas, 137 U. S. 692, 698; In re Converse, 137 U. S. 624, 631; beeper v. Texas, 139 U. S. 462, 468; Davis v. Texas, 139 U. S. 651; Howard v. Kentucky, 200 U. S. 164, 173.

314 Opinion of the Court.

larceny," N. Y. Penal Law § 1308. The overlapping nature of the two offenses is further emphasized by the definition of larceny in § 1290, which includes conduct whereby any person who "with the intent to deprive or defraud another of the use and benefit of property, or to appropriate the same to the use of . . . any other person other than the true owner, wrongfully takes, obtains or withholds [any property] by any means whatever, from the possession of the true owner or of any other person . . . ."

It would be exaltation of technical precision to an unwarranted degree to say that the indictment here did not inform petitioner that he was charged with substantial elements of the crime of larceny thereby enabling him, as a means of cutting his sentence in half, to agree to plead guilty to an attempted larceny. Procedural requirements are essential constitutional safeguards in our system of criminal law. These safeguards should constantly and vigilantly be observed to afford those accused of crime every fair opportunity to defend themselves. This petitioner had such opportunity. Months after his first appearance in court he came back and pleaded guilty to an attempt wrongfully to "withhold" the very property of another which the indictment had originally charged him with wrongfully "withholding."10 It would be a strained interpretation of petitioner's constitutional rights

10 The Appellate Division's opinion in this case said: "It is true that the crime of attempted grand larceny, second degree is not necessarily included under a charge of criminally receiving stolen property (the then indictment against Paterno) (People ex rel. Wachowicz v. Martin, 293 N. Y. 361, supra) but one can conceive a set of facts under which one guilty of criminally receiving stolen property could be guilty of larceny in unlawfully withholding the stolen property from the owner thereof. (Penal Law, § 1290; see People v. Vitolo, 271 App. Div. 959; 136 A. L. R. 1091; and 2 Wharton on Criminal Law, §§ 1122, 1168.)" 272 App. Div. at 126, 69 N. Y. S. 2d at 719.

Frankfurter, J., concurring. 334U.S.

to hold that under these circumstances he was not given sufficient notice of the charge against him to afford a basis for an intelligent decision to plead guilty to a related but lesser offense than that specifically described in the indictment. The due process clause of the Federal Constitution requires no such holding.


Mr. Justice Douglas dissents.

Mr. Justice Frankfurter, concurring.

The New York Constitution requires that prosecution for an "infamous crime" be upon indictment by grand jury. The New York Court of Appeals has held that this constitutional requirement does not nullify the acceptance by a trial court of a plea of guilty to the offense of attempted grand larceny, second degree, upon an indictment for knowingly receiving stolen goods. Since, so far as the United States Constitution is concerned, the States may dispense with accusations by grand juries, it is for New York and not for us to decide when the procedural requirements of New York law, not touching those fundamental safeguards which the United States Constitution protects, are satisfied. What is here challenged is New York's determination that the knowing receipt of stolen goods is sufficiently related to larceny so as to permit acceptance of a plea of guilty of the latter on the assumption that an indictment for one affords adequate notice of the other. Surely this does not rise to the dignity of a substantial federal question. In the early days of the Fourteenth Amendment, this Court deemed it appropriate to remind that that Amendment had not made this Court an appellate tribunal to supervise the administration of the criminal law of the States. It is not irrelevant to recall this admonition.

314 Syllabus.

Thus, I agree with the Court's opinion, but draw from it the conclusion that the writ of certiorari should be dismissed for want of a substantial federal question.




No. 560. Argued April 21, 1948.—Decided June 1, 1948.

Regulations of the Civil Service Commission applicable to reductions in force of employees of the Federal Government prescribed the following order of priority for retention of "permanent employees": (1) A-l Plus, World War II veterans for a one-year period after return to duty; (2) A-l, Veteran's preference employees with efficiency ratings of "good" or better; (3) A-2, Employees without veteran's preference with efficiency ratings of "good" or better. Under the regulations, every member of groups A-l Plus and A-l was entitled to be retained in preference to those in group A-2, without regard to length of service. Petitioner was classified in group A-2 and was notified of a one-year furlough. He sued for a declaratory judgment, praying that the Commission's A-l Plus and A-l classifications be declared void, that he be restored to his position, and that the Commission be required to rescind the regulations and promulgate new ones in accordance with law. Held:

1. In the circumstances of this case, petitioner is entitled to challenge the validity of the A-l Plus as well as the A-l classification. Pp. 325-328.

2. The A-l Plus classification is authorized by § 8 of the Selective Training and Service Act of 1940. Pp. 328-333.

(a) The mandatory requirement of § 8 (b) (A) of the Selective Training and Service Act of 1940 that the Government rehire its returning veteran employees is not qualified, as in the case of private employers under §8(b) (B), when "the employer's circumstances have so changed as to make it impossible or unreasonable to do so." Pp. 328-330,331.

Counsel for Parties. 334U.S.

(b) Trailmobile Co. v. Whirls, 331 U. S. 40, and Fishgold v. Sullivan Drydock & Repair Co., 328 U. S. 275, distinguished. Pp. 330-333.

(c) The prohibition of § 8 (c) of the Selective Training and Service Act of 1940 against "discharge" of a reemployed war veteran must be read in light of the different reemployment obligations imposed on private employers and on the Federal Government. P.331.

(d) Section 12 of the Veterans' Preference Act of 1944 did not so amend § 8 of the Selective Training and Service Act as to confer upon petitioner retention rights based upon his length of service. P. 332.

(e) A one-year furlough, applied to veterans, would be a "discharge" within the meaning of § 8 (c) of the Selective Training and Service Act. P. 333.

3. The A-l classification, which gives all permanent employee "Veterans with 'good' or higher efficiency ratings" retention preferences over all nonveterans, even over nonveterans with higher efficiency ratings and longer government service, is authorized by § 12 of the Veterans' Preference Act of 1944, in view of that section's legislative history. Pp. 333-339.

(a) The "due effect" required by the first clause of § 12 is given to length of service by its consideration in the determination of retention preferences as between veteran and veteran and as between nonveteran and nonveteran. Pp. 335-336.

(b) The question of the wisdom of the policy embodied in a congressional enactment is not for this Court to determine. P. 339.

83 U. S. App. D. C. —, 165 F. 2d 251, affirmed.

In a declaratory judgment action by petitioner against the Secretary of the Navy and the members of the Civil Service Commission to establish his employment status, the District Court granted the Government's motion for summary judgment. The Court of Appeals affirmed. 83 U. S. App. D. C. — 165 F. 2d 251. This Court granted certiorari. 333 U. S. 841. Affirmed, p. 339.

Charles Fahy argued the cause for petitioner. With him on the brief were Philip Levy and Walter B. Wilbur.

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