269 F. 96 | 5th Cir. | 1920
Plaintiff in error was convicted of perjury in making a false affidavit in support of a motion for continuance in another prosecution, reported in 267 Fed. 529, pending against himself and others, for conspiracy to steal certain arms and ammunition from the United States and to export the same without license. This affidavit contained two statements which the indictment charges were false. These statements are as follows:
(1) “That on the 2d day of February, A. D. 1919, he, the said Amado Car-mono, was at the house of one Francisco Lopez, and that on said day Francisco Lopez told Amado Carmono, the said Amado Carmono being then and there about to go to San Ignacio, in Mexico, to notify for him, said Francisco Lopez, the commander of the Carranza troops or the Carranza river guards, that he, the said Lopez, had obtained for them the guns mentioned that he, said Lopez, had been asked to get, and to request said commander to send for said guns and ammunition as soon as possible, or to tell him to take said property, and that said witness, Amado Carmono, would further testify that the said Lopez told him, the said Carmono, at the said time and place, that he had obtained said guns and ammunitions for one Dick Harrell and two soldiers of the United States army, and that he had them there in his possession, since he obtained them from said parties, and that said property had been in his possession for some 10 or 12 days, and that he had held said property so long that he was getting uneasy.”
(2) “That one Salvador Cano, a witness for the government, just before leaving the premises of the said George Holmes with one Dick Harrell, a eodefendant of said Holmes in said cause, on the night of January 22, 1919, the said Cano admonished the said Francisco Trujillo that under no circumstances should he let the defendant Holmes know that said Dick Harrell had been at the premises of the said Holmes that night, and should not let Holmes know that ho, the said Cano, had gone out with the said Harrell, and further that the said witness Francisco Trujillo would testify that he told the defendant Holmes of the fact that Cano, who was a chauffeur for the defendant Holmes, had left the premises on said night with said Harrell, and further that said witness Cano would testify that thereupon said Holmes called the said Cano into his presence and rebuked him for having people call at the house in the nighttime, and threatened to discharge said Cano if his conduct was repeated.” .
The affidavit also alleged that Lopez and Cano would appear as witnesses for the government.
There is practically no difference in substance between -the two counts of the indictment. The matters set up in the first count were pleaded in the second count by reference, and their materiality was alleged to lie in the fact that plaintiff in error would thereby be enabled to procure a continuance of the prosecution pending against him. Carmono and Trujillo were present at the trial of plaintiff in error and his codefendants upon the charge of conspiracy, but were not called upon to testify.
It is not contended here that the evidence was insufficient to sustain the indictment, and therefore it becomes unnecessary to state what it was. The assignments relate wholly to the sufficiency of the indictment, and to the admissibility of certain evidence admitted over the objection- of plaintiff in error.
5. It is assigned as ernjr that the district attorney asked the plaintiff in error, on cross-examination, whether he testified in the con-' spiracy case. The question should not have been asked, iji view of the fact that the court had ruled out a similar question twice before. It was highly improper for the district attorney to continue to ask questions which, in the view of the court, were objectionable. Plow ever, the objection to the question was sustained, plaintiff in error did not make any motion, or apply to the court to do anything more, and therefore there is nothing in the record upon which an assignment of error can be based.
Reversible error is not made to appear by any of the assignments of error, and the judgment is therefore affirmed.