Kreuzer v. United States, 254 F. 34

Kreuzer v. United States

254 F. 34 | 8th Cir. | 1918

TRIEBER, District Judge

(after stating the facts as above), f 1 ] It is urged that there was a misjoinder of charges, but the contention is without merit. Section 1024, Rev. St. (Comp. St. 1916, § 1690), permits such joinders, as each of the counts is for acts connected together, and for transactions of the same class of crimes. Logan v. United States, 144 U. S. 263, 295, 12 Sup. Ct. 617, 36 L. Ed. 429; Pointer v. United States, 151 U. S. 396, 403, 14 Sup. Ct. 410, 38 L. Ed. 208; Ingraham v. United States, 155 U. S. 434, 436, 15 Sup. Ct. 148, 39 L. Ed. 213; Dolan v. United States, 133 Fed. 440, 446, 69 C. C. A. 274; McGregor v. United States, 134 Fed. 187, 69 C. C. A. 477; Rooney v. United States, 203 Fed. 928, 122 C. C. A. 230; Norton v. United States, 205 Eed. 593, 123 C. C. A. 609. None o£ the authorities cited by counsel for the defendant is in point. In McElroy v. United States, 164 U. S. 76, 17 Sup. Ct. 31, 41 L. Ed. 355, it was held that indictments against several defendants for assault cannot be consolidated with an indictment against only some of the defendants for arson and another indictment for arson committed two weeks later. The other authorities cited do not pass upon this question.

[2] As the sentences on the third and fourth counts are to be executed concurrently with that imposed on the second count, and therefore but one punishment has been imposed, it is only necessary to determine the sufficiency of that count. Evans v. United States, 153 U. S. 608, 14 Sup. Ct. 939, 38 L. Ed. 839; Billingsley v. United States, 178 Fed. 653, 662, 101 C. C. A. 465; Norton v. United States, supra, 205 Fed. 602, 123 C. C. A. 609.

Should the demurrer to' the second count have been sustained ? May v. United States, 199 Fed. 42, 117 C. C. A. 420, rules this contention, and upon the authority of that case we hold it untenable. See, also, Marhoefer v. United States, 241 Fed. 48, 154 C. C. A. 48.

[3] The assignment that the court erred in overruling the objection to the testimony of Mr. Mattingly, because he had not qualified as an expert, fails to set out the testimony admitted or its full substance, as required by rule 11 of this court (188 Fed. ix, 109 C. C. A. ix). Nol-is this assignment discussed in the elaborate brief of counsel for the defendant. It may therefore be treated as abandoned.

[4] But, aside from this, he did qualify as an expert. After testifying that he had been working for three years on other oleomargarine cases and had examined the contents of many tubs during that whole period of time, he further testified:

“Generally speaking, I can tell what a tub that is factory packed looks like, though it may be possible for a tub that is not factory packed to be packed almost as perfectly as a factory packed tub.”

*38This was sufficient to permit him to testify as an expert, and it was for the jury to determine the weight to be given to his'testimony. The general rule, as determined by the Supreme Court and this court, is found in Gillespie v. Collier, 224 Fed. 298, 301, 139 C. C. A. 534, 537, where the court quoted and followed what was said by the Supreme Court in Gila Valley R. Co. v. Lyon, 203 U. S. 465, 475, 27 Sup. Ct. 145, 148 (51 L. Ed. 276):

“In the cases of all witnesses, we think the question of the admissibility of their evidence was one within the reasonable discretion of the trial court, and that the discretion was not abused. All the witnesses had had practical experience on railroads, and were familiar with structures and the character of bluffers mentioned in the evidence. There was certainly enough to call upon the court to decide upon the admissibility of their opinions under these circumstances, and we ought not to interfere with the decision of the trial court in this case.”

[5] This disposes of the assignments of error filed when the writ of error and supersedeas were granted. The amended assignment of errors filed several months after the writ of error had been granted, although by leave to the District Court, cannot be considered, as that court had no power to grant such leave at that time.

[6] The additional assignments of error filed by leave of this court are properly before us. The first is that the court erred in permitting the witness Daly to testify that “the witness Mattingly’s statement ahout the barricade was correct.” But, while the witness did testify to that effect, he repeated what he saw and heard the defendant say and do; the witness being a deputy collector of internal revenue, taking part in the raid with Mr. Mattingly.

The court committed no prejudicial error in overruling the objection. The other assignments are clearly without merit.

[7] As no motion for a directed verdict was made on behalf of the defendant, the court committed no error in submitting the case to the jury. Besides, a careful reading of the testimony satisfies that there -was substantial evidence to justify a verdict of guilty, and even if a motion for a directed verdict had been made, the refusal would not be error.

[8, 9] As to the alleged errors in the charge of the court, it is sufficient to say that no exceptions were taken to any part of the charge ; but, in view of the fact that the defendant’s liberty is at stake, we have carefully read it, and find no prejudicial error. The only part of the charge complained of, which it is proper to refer to, is that part in ■which the court told the jury:

“The defendant in this case has not testified in his own behalf. That is not to be considered by the jury in any respect whatever. In our courts of justice, the defendant has a right to stand on the presumption of innocence of the offense, and he cannot be convicted unless the government has proven the offense or offenses charged against him, beyond all reasonable doubt, as 1 have defined the term to you.”

This it is claimed, is prejudicial error. To us it seems these remarks were, if anything, favorable to the defendant, as it cautioned the jury against any presumption of guilt, which may arise in their minds from the fact that the defendant did not avail himself of the *39privilege of testifying granted by Act March 16, 1878, c. 37, 20 Stat. 30 (Comp. St. 1916, § 1465). Hanish v. United States, 227 Fed. 584, 142 C. C. A. 216.

[10] By the supplemental proceeding, brought up on the writ of certiorari, the claim is made that the action of the court, sentencing the defendant on the fifth count, at a term after the writ of error and supersedeas had been obtained, which sentence had been executed, nullifies the former sentence, constituting a double punishment. The fifth count charges an entirely different offense from that charged in the second count. The latter charges “mixing artificial coloration with white or uncolored oleomargarine, and thereby making a product resembling butter of a shade of yellow, for sale * * * in an attempt to defraud the United States of the tax imposed by law upon colored oleomargarine,” etc.

It charges a violation of section 8 of the Act of August 2, 1886, c. 840, 24 Stat. 210, as amended by Act May 9, 1902, c. 784, § 3, 32 Stat. 194 (section 6220, U. S. Comp. St. 1916). The fifth count charges a violation of section 13 of the Act of August 2, 1886, 24 Stat. 211 (section 6225, U. S. Comp. St. 1916). This contention is therefore without merit.

Finding no error, the judgment is affirmed.