Cook v. United States
14 F.2d 833
8th Cir.
1926
Check Treatment

COOK v. UNITED STATES

No. 7348

Circuit Court of Appeals, Eighth Circuit

September 17, 1926

14 F.(2d) 833

bankruptcy court, we should not hesitate to voice condemnation thereof, but we are not to presume maladministration of affairs by the court officials. These costs have been paid by appellants without any objection as a part of the arrangement for the purchase of the property. The money has been disbursed—some of it to their own counsel. No offer has been made to return the property. The special master found that the sale would not have been made unless appellants agreed to pay these costs. If the referee had refused to accept their bid, they could have taken the matter before the District Court for review. They did not do so. There was no extortion so far as this record discloses. By their foreclosure in the bankruptcy court they acquired certain rights in the way of possession of the property which they would not have secured had they proceeded by foreclosure in the state courts. The expenses which they paid as a part of their bid were incurred in a contest over Marker‘s claim of title to the real estate, which contest was instituted at their suggestion. Having had the advantages of the foreclosure in the bankruptcy court, they now in this proceeding ask to have returned to them a part of the purchase price under the plea that it was extorted from them by the wrongful conduct of the officials of the bankruptcy court. We think the equities are not with appellants as far as this limited record shows.

They are in no position to complain of the order and judgment of the District Court, and the same is affirmed.

COOK v. UNITED STATES.

(Circuit Court of Appeals, Eighth Circuit. September 17, 1926.)

No. 7348.

1. Criminal law 1166(1).

Court‘s correction of clerical error, by transposing numbers of two indictments against same defendants, held not prejudicial.

2. Criminal law 1186(4).

In prosecution for conspiracy, admission of evidence that two defendants, a justice of the peace and a constable, had sold immunity from arrest to others than person named in indictment, held not reversible error, in view of Judicial Code, § 269 (Comp. St. § 1246).

3. Criminal law 656(5).

In prosecution for conspiracy to violate Prohibition Act, court‘s repeated and emphatic statement that he gave no credence to particular testimony for defendant held reversible error (Comp. St. § 10138 1/4 et seq.).

Stone, Circuit Judge, dissenting.

In Error to the District Court of the United States for the Northern District of Oklahoma; Franklin E. Kennamer, Judge.

William Cook was convicted of conspiracy to violate the National Prohibition Act, and he brings error. Reversed.

John T. Harley, of Tulsa, Okl., for plaintiff in error.

John M. Goldesberry, U. S. Atty., of Tulsa, Okl. (W. L. Coffey, Asst. U. S. Atty., of Tulsa, Okl., on the brief), for the United States.

Before STONE and LEWIS, Circuit Judges, and SYMES, District Judge.

SYMES, District Judge. The plaintiff in error, William Cook, and one Jasper Cox, were indicted for conspiring together, and with one C. B. Aubrey, to violate the National Prohibition Act (Comp. St. § 10138 1/4 et seq.).

The indictment charged that the defendants Cox and Cook, being a justice of the peace and constable, respectively, in and for Creek county, Okl., agreed as such, on or about April 15, 1925, that Aubrey should and would be permitted to set up a still and sell and transport whisky, and would be protected by them from arrest or prosecution, in consideration of the payment by said Aubrey of $40 a month. The one overt act alleged was that Cox and Cook, pursuant to said arrangement, feloniously received from Aubrey $10 on or about the 8th day of June, 1925. From a judgment of conviction, Cook alone appeals.

[1] At the time of the trial two indictments were pending against the same defendants, and the first specification of error argued is the action of the court, after the trial had begun, in ordering the numbers on the indictments changed, and thereby putting, as alleged, the defendants on trial for a separate offense. We see no merit in this objection. It was clearly understood at the time that Cook and Cox were on trial for conspiring with Aubrey, and the correction of a clerical error by transposing the numbers of the two cases did not affect any substantial rights of the defendants.

[2] The next objection is to the admission of evidence of other transactions, or overt acts, not set out in the indictment. This seems to be a matter of discretion, and the testimony objected to comes within the rule that permits evidence of other and distinct offenses to be introduced, when they are so related to the main issue in respect to time and character as to aid in its solution. The latest authority on this is

, and cases cited. In
, the court, after stating that considerable discretion is allowed the trial courts as to the manner and method of procedure before them, including the introduction of testimony, states that evidence may not be admitted of other alleged crimes not related to the offense under trial, except where intent is an essential ingredient, or the subject of inquiry is so related to the main offense as to throw material light thereon. See, also,
,
,
,
. In
, the court said:

Proof of a conspiracy may, and generally does, consist of a multitude of facts and circumstances, regardless of whether, singly considered, they would constitute overt acts or not, and regardless of the time of their occurrence, provided it is shown that the conspiracy continued and was still afoot within the period of limitation.

The evidence objected to tended to show that the defendants, about the time in question, were selling protection or immunity from arrest to persons other than those charged in the indictment. On the entire record we are of the opinion that the verdict of the jury was justified, and that, with the exception hereafter noted, we are not warranted, under section 269, Judicial Code (Comp. St. § 1246), in reversing the judgment on any of the grounds urged.

. Counsel, in urging objections similar to those referred to should consider this wise and salutary provision of the Judicial Code. Errors of a minor nature cannot be considered.
.

[3] Assignments of error Nos. 15 and 16 challenge certain comments made by the court upon the evidence in the instructions as being argumentative and nonjudicial in character. The question thus presented is not free from difficulty. The rule in this circuit has been very clearly stated in

, and in
. We have no intention of limiting the statement there made that:

A judge should not be a mere automatic oracle of the law, but a living participant in the trial, and so far as the limitations of his position permit should see that justice is done.

But in the instant case we think the court went too far, in spite of the fact that it clearly impressed upon the jury that they were the sole triers of the facts, and that their verdict must be their own, and that the court‘s opinion was not binding upon them. It was admitted that money was paid to Cook; the government contending it was a bribe, while the defendant swore that it was received as a payment of some gasoline tickets. This was, as the lower court stated, the turning point in the case.

In commenting thereon the court said—as he very well might—that he gave no credence whatever to this statement of Cook‘s about the gasoline tickets, and that he believed it to be an afterthought. But the court did not stop with that expression of an opinion. He not only repeated it thereafter, but later returned to the subject, to state emphatically that it did not look reasonable to him, and still again, that he did not think that the version given in behalf of the defendant ever happened, etc. These statements, taken together, constitute more than a mere judicial expression of opinion, and partake of the nature of a partisan argument, very apt to convince the jury, by mere weight of reiteration, of the falsity of that part of the defendant‘s case upon which his guilt or innocence depended. It is not in accord with the following language from the

, supra:

But his comments upon the facts should be judicial and dispassionate, and so carefully guarded that the jurors, who are the triers of them, may be left free to exercise their independent judgment.

Other cases on this question in this circuit are

, and
.

For this reason the judgment must be reversed; and it is so ordered.

STONE, Circuit Judge (dissenting).

I think this judgment should be affirmed. The point upon which the majority think there should be reversal is that the court intemperately commented upon the evidence in his charge. The assignment in this regard is that the court erred in this respect:

In that he failed to instruct and comment accurately upon the theory of the defense as to the reasonableness of the negro informers going to the office of the justice of the peace to pay a gasoline bill, when in fact the theory and the proof of the government‘s case showed a prearranged plan between the informers, the chief of police, the deputy marshal, the prohibition inspector and the district attorney to deliver money to the defendant where he could be found.

The matter which is sought to be argued here is the alleged intemperance of the comments which were actually made and not, according to the assignment, as to an omission to charge. Because of this lack of proper assignment, this court should not pass upon this matter. However, if properly assigned, the matter is not well founded. Although the court rather clearly stated to the jury that he took little stock in some of the evidence offered by the defendants, yet he repeatedly stated to the jury, and clearly, that they were the exclusive triers of the fact, were not bound by anything that he might say concerning the facts and should make up their minds from the evidence and not from what he might say. Not only was this true of the charge, but it was further emphasized at the end of the charge, when this particular matter was brought to the attention of the court and the jury by an exception to the charge. The defense, in this particular, was so palpably untrue and manufactured that the court was justified in stating to the jury that it was such in his opinion.

BARHAM v. UNITED STATES.

(Circuit Court of Appeals, Eighth Circuit. September 17, 1926.)

No. 7281.

1. Indictment and information 71—Indictment for possessing liquor in Indian country held sufficiently definite.

Indictment charging that defendant in a particular county, on or about a particular date, possessed intoxicating liquor in Indian country, to wit, the county previously named, held sufficiently definite and certain as against objection first made in appellate court.

2. Criminal law 656(5)—Court‘s disparagement of particular witness, and expression of disbelief of his testimony, held reversible error.

In prosecution for possessing liquor, court‘s statement that he did not believe deputy sheriff‘s testimony, had no respect for him, and that, so long as men like him wore deputy sheriff‘s commission, 15 year old girls would be at dances drinking liquor, held improper comment on evidence, constituting reversible error.

Stone, Circuit Judge, dissenting in part.

In Error to the District Court of the United States for the Northern District of Oklahoma; Franklin E. Kennamer, Judge.

Burt Barham was convicted of feloniously possessing intoxicating liquor in Indian country, and he brings error. Reversed.

Fred A. Tillman, of Pawhuska, Okl. (John W. Tillman and Welcome D. Pierson, both of Pawhuska, Okl., on the brief), for plaintiff in error.

W. L. Coffey, Asst. U. S. Atty., of Tulsa, Okl. (John M. Goldesberry, U. S. Atty., of Tulsa, Okl., on the brief), for the United States.

Before STONE and LEWIS, Circuit Judges, and SYMES, District Judge.

SYMES, District Judge. The defendant below, Burt Barham, was convicted in the District Court for the Northern District of Oklahoma for the felonious possession of intoxicating liquor in an Indian country, and brings error. Two objections only are seriously pressed on this appeal.

[1] First, that the indictment failed to state facts sufficient to constitute the crime charged. The material part of the indictment is as follows:

“That Burt Barham, Tina Barham, * * * in Osage county, state of Oklahoma, Northern district of Oklahoma, and within the jurisdiction of this court, did, on or about the 2d day of August, 1925, willfully, unlawfully, and feloniously have possession of certain intoxicating liquor, to wit, one gallon and, one-half pint of whisky, in and upon an Indian country, to wit, Osage county, Oklahoma, contrary to the form of the statute,” etc.

It is said that this is indefinite and uncertain, does not apprise the defendant of the charge against him, and requires him to meet testimony that at any time in the day or night, within three years of the filing of the indictment, or at any place in said county, he possessed whisky.

The question was not called to the attention of the trial court, either by a demurrer to the indictment, motion to quash, or in any other manner. The indictment states a statutory offense in the words of the statute; so is good against attack made after trial, and especially when raised in this court for the first time. In

at page 613,
it is said: “While in this country it is usual to state the town as well as the county, it has not been generally deemed necessary to do so, and most of the authorities assume that an allegation is sufficient after verdict which shows it to have been done within the jurisdiction of the court.”

And on page 614 of the same case (

): “We do not wish to be understood as approving the practice that was pursued in this case, or even as holding that this indictment might not have been open to special