80 F.2d 629 | 4th Cir. | 1935
The defendant was indicted with Benjamin Cohen and two other defendants upon the charge of unlawfully and feloni
The main point in the case is that the District Court erred in overruling the appellant’s motion to quash the indictment. The attorneys for the defendants conceived the idea before the jury was sworn that the witnesses 'who had first-hand knowledge of the circumstances of the crime had not appeared before the grand jury when it was considering the case. No attempt, however, was made to bring this .matter to the attention of the court before the petit jury was sworn. Each of the witnesses for the prosecution was asked on cross-examination whether he appeared before the grand jury as a witness, and after the case for the government was closed, the defendants put upon the witness stand an investigator in the employ of the Alcohol Tax Unit who testified that he had investigated the case and had taken the sworn statements of the witnesses, and that he appeared before the grand jury and presented these statements to it, and that no other witness appeared before the grand jury in the case. Thereupon the defendants filed a motion to quash the indictment on the ground that there was no competent legal testimony presented to the grand jury; but the court overruled the motion on the ground, amongst others, that it was presented too late. It is well established that a motion to quash an indictment should be made before the plea is filed, and certainly before the jury is sworn. Bishop on New Criminal Procedure, § 882 (4); United States v. Gale, 109 U.S. 65, 3 S.Ct. 1, 27 L.Ed. 857. It is also well established that a motion to quash the indictment is ordinarily addressed to the discretion of the trial court and is not subject to review. Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709; Pick v. State, 143 Md. 192, 121 A. 918; Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021, 20 Ann.Cas. 1138; McKinney v. United States (C.C.A.) 199 F. 25; Anderson v. United States (C.C.A.) 273 F. 20; Luxemberg v. United States (C.C.A.) 45 F.(2d) 497; Kastel v. United States (C.C.A.) 23 F.(2d) 156; Murdick v. United States (C.C.A.) 15 F.(2d) 965; Bowles v. United States (C.C.A.) 73 F.(2d) 772. Bearing these rules in mind, it is apparent that there was no abuse of the discretion lodged in the District Judge when he overruled the motion to quash that was not filed until after the case for the prosecution had been closed. The record shows that the point under discussion was in the minds of counsel before the trial began; and although they were not in possession of precise information as to what witnesses appeared before the grand jury and what evidence had been given to it, there is no reason to believe that this information could not have been as readily obtained before as well as after the jury was sworn. The proper administration of justice required that if the defendant desired to present the objection that the indictment was defective by a motion to. quash, it should have been made at a suitable time and when there was still an opportunity for the government if need be to correct the defect by the presentation of additional evidence before the grand jury.
The appellant raised the same point as to the insufficiency of the- evidence be
The judgment of the District Court is affirmed.