219 F. 670 | 8th Cir. | 1914
Lead Opinion
Collins was indicted for introducing liquor into the Indian country. He waived arraignment and pleaded not guilty. When the case came on for trial, he asked leave to withdraw his plea, so that he could demur to the indictment. His motion was denied, and he was tried, convicted, and sentenced.
The sentence is affirmed,
Rehearing
On Petition for Rehearing.
This is a petition by Collins for rehearing upon the ground that the court overlooked certain assignments of error. The rules of appellate procedure are for the most part so well settled that the constant repetition of them in opinions serves no useful purpose. To do much more than to discuss meritorious questions properly preserved and presented is a task beyond the capacity of the courts. However, as this case involves the liberty of. a citizen, and the assignments referred to are not on their face without merit, we will give the reasons for their omission from the opinion, though in doing so we but say what has been said very many times before. The assignments are:
5. Because the court erred in overruling the defendant’s oral demurrer at the conclusion of government’s testimony, for the reason that no testimony was adduced wherein it was shown, or wherein it was attempted to he shown, or wherein it was proven, that the alleged introduction of intoxicating liquors, set out in the purported indictment, were introduced into Indian country from without said Indian country and from without the state of Oklahoma.
6. Because the court erred in refusing defendant’s request to direct the jury in said cause to return a verdict of not guilty, for the reason that the proof adduced did not in any way show, nor did it even tend to show, the initial point of shipment, whether interstate or intrastate, and no proof was adduced to connect this defendant with its introduction into Indian country and from without the state of Oklahoma.
8. Because the court erred in this: That under the purported indictment and the proof introduced by the government, a conflict arose, for the reason of obscurity, uncertainty, and lack of knowledge of any point without the Indian country, or the state of Oklahoma, from whence it came.
10. Because the court erred in entering judgment herein against the defendant and in favor of the United States of America.
“The defendant further excepts for the reason that the court erred in refusing defendant’s request to direct the jury in said cause to return a verdict of not guilty.”
Here, and in each of the other instances set forth in the statement, it does not appear that an occasion for a ruling arose, or that the court ruled, except as it may be inferred from the reason given by counsel for the exception.
The office of a bill of exceptions has been misconceived. It is for recording exceptions that were taken to rulings of the court; it is not for the present taking of exceptions to rulings in a trial that has ended. In, this particular the case at bar is similar to Pacific Express Co. v. Malin, 132 U. S. 531, 10 Sup. Ct. 166, 33 L. Ed. 450. There the verdict was rendered October 6th. On October 8th two bills of exceptions were tendered to the court and signed. Both reláted to the charge to the jury. One of them began: “Now comes the defendant and excepts,” etc., and concluded: “And for said reasons defendant objects and excepts,” etc. The beginning of the other was similar. The Supreme Court said:
“It may be further remarked that the alleged bills of exceptions do not show that the exceptions were taken on the trial. While exceptions may be reduced to form and signed after the trial, they must appear affirmatively to have been taken before the jury withdrew from the bar.”
“We hold now, as we have always holden, that when bills of exceptions are necessary to bring any matter upon record so that it can be reviewed in error, it must appear by the record that the exception was taken at the trial. A judge cannot afterwards allow one not taken in time.”
“Because the court erred in entering judgment herein against the defendant and in favor of the United States of America.” -
This is too general to present a question for review. See Scholey v. Rew, 23 Wall. 331, 345, 23 L. Ed. 99; Texas & Pacific R. Co. v. Archibald, 170 U. S. 665, 668, 18 Sup. Ct. 777, 42 L. Ed. 1188.
“The court erred at the close of government’s case, to overrule defendant’s demurrer to the testimony introduced, and refusing to direct a verdict of not guilty, said testimony entirely failing,” etc.
If the fifth and sixth assignments- of error are based upon the presence of these two matters in the motion, it would still have to be said that the sufficiency of- the evidence to sustain the verdict and judgment cannot be tested by a motion in arrest. See Bond v. Dustin, 112 U. S. 604, 608, 5 Sup. Ct. 296, 28 L. Ed. 835.
The foregoing rules are old in the law. Most of them have been announced very many times by the appellate courts of the United States. Some are essential to justice itself; all are important to the orderly and efficient conduct of judicial business. Compliance with them is no hardship. There are cases in which we will notice plain errors not assigned, and endeavor so far as we can to see that no grievous wrong results from the machinery of procedure. But the power is not without limitations; and it should be cautiously exercised — as, for example, where in the final analysis of the merits of a case we feel that an innocent man has been convicted.
The petition for rehearing is denied.