United States v. Motlow
| Decision Date | 28 February 1926 |
| Citation | 10 F.2d 657 |
| Parties | UNITED STATES v. MOTLOW et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
T. J. Rowe, Henry Rowe, William Baer, and Charles A. Houts, all of St. Louis, Mo., Thomas Pogue, of Cincinnati, Ohio, Moses B. Lairy, of Indianapolis, Ind., A. Julius Frieberg, of Cincinnati, Ohio, and Levi Cooke, of Washington, D. C., for petitioners.
Albert Ward, U. S. Atty., of Peru, Ind., and Howard T. Jones and Mahlon D. Kiefer, Sp. Asst. Attys. Gen., for the United States.
Before Mr. Justice Butler, of the Supreme Court, Sitting as Circuit Justice.
In the matter of the petitions of Harry Levin and nine other defendants to be admitted to bail.
February 3, 1926, there was presented to me, as Circuit Justice of the Seventh circuit, the petitions for Harry Levin, Morris Multin, Michael Whalen, Daniel O'Neil, Robert E. Walker, John Connors, Anthony Foley, Edward J. O'Hare, George R. Landon, and William Lucking, to be admitted to bail. Their respective attorneys, T. J. Rowe, Esq., Henry Rowe, Esq., William Baer, Esq., Charles A. Houts, Esq., Thomas Pogue, Esq., Moses B. Lairy, Esq., A. Julius Frieberg, Esq., and Levi Cooke, Esq., appeared in support of the petition. Notice having been given, Albert Ward, Esq., United States attorney for the district of Indiana, and Howard T. Jones, and Mahlon D. Kiefer, Esq., special assistants to the Attorney General, appeared in opposition.
District Court for the District of Indiana, an indictment was returned against thirty-nine persons, including the petitioners. It charged that the defendants conspired with each other and with divers other persons, whose names were unknown, to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.) and particularly section 3 of title 2 thereof (section 10138½aa, Comp. St. Ann. Supp. 1923). Overt acts were alleged to have been committed in Ohio, Indiana, and Missouri. On the return of the indictment, petitioners appeared and were admitted to bail. The trial commenced on December 14, 1925, and ended on the 18th day of that month. Petitioners were found guilty. After the verdict, they were allowed to remain at large on bail until December 30, 1925. On that day, they made motions for a new trial and in arrest of judgment. The motions were denied, and they were sentenced to the penitentiary at Leavenworth, and to pay fines, as follows:
Name Terms of Imprisonment. Fine
Harry Levin ...................... 2 years ................... $5,000
Morris Multin .................... 2 years ................... 5,000
Michael Whalen ................... 2 years ................... 5,000
Daniel O'Neil .................... 15 months ................. 500
Robert E. Walker ................. 15 months ................. 1,000
John Connors ..................... 15 months ................. 1,000
Anthony Foley .................... 15 months ................. 1,500
Edward J. O'Hare ................. 1 year and 1 day .......... 500
George R. Landon ................. 1 year and 1 day .......... 2,500
William Lucking .................. 1 year and 1 day .......... 2,500
On the same day, in order to take the case to the Circuit Court of Appeals for review, petitioners filed assignments of errors and petitions for writs of error. The writs were allowed, and citations were issued and served. Thereupon, petitioners applied to the District Court for bail pending a determination of the case in the Circuit Court of Appeals. The application was denied. In execution of the judgment, petitioners were committed to the penitentiary, and, pursuant to the sentences imposed, they are now there imprisoned.
Petitioners insist that, by the proceedings after the verdict, the judgments were superseded, and that, as a matter of legal right, each of them was entitled to an order of supersedeas and also entitled to be admitted to bail. They state that their assignments of errors are made in good faith and upon assurance of counsel that they are well founded in law. Applicants challenge the jurisdiction of the trial court, the competency of certain witnesses called by the government, the admissibility of some evidence introduced against them, and a part of the court's charge to the jury; and, in behalf of Landon and Lucking, it is earnestly claimed that, as a matter of law, the evidence was not sufficient to justify or sustain a verdict against them. Petitioners represent that they are proceeding with diligence to secure an early review of the case, and they say that they did not delay the trial; that, being on bail, they attended the trial as required, and made no attempt to escape or to evade any order of the court after conviction; that each of them has a fixed place of abode, and has been engaged in business in St. Louis; that none of them has ever been a fugitive from justice; and that each is able to give a bond in such reasonable amount as may be required. They aver, on information and belief, that it will require approximately a year to obtain decision in the Circuit Court of Appeals, and that, if bail is denied, the petitioner O'Hare, sentenced for one year and a day — deducting the allowance for good behavior — will have served his term before his writ of error can be determined, that the petitioners under sentence of 15 months will have served substantially all their time, and that those under sentence of 2 years will have served two-thirds of their sentences before such determination.
At the hearing, February 3, on this application, oral objections were made on behalf of the United States; and the United States attorney stated that, after denial of bail by the District Court, the petitioners on the next day, December 31, 1925, applied to the Circuit Court of Appeals to be admitted to bail, and that the application was denied. Time not to exceed 10 days was granted to enable him to present a copy of the record and papers in that court, together with a transcript of the minutes, if any were taken, of the hearing there had.
On February 13, the United States attorneys presented written objections, in substance, as follows: (1) The granting of bail is addressed to the discretion of the trial judge; (2) the application for bail was denied by the trial judge and later by two Circuit Judges; (3) the petitioners have not shown that the District Judge or Circuit Judges abused their discretion; (4) in the absence of a transcript or bill of exceptions, the discretion of the District Judge and Circuit Judges cannot be reviewed; (5) after conviction, every presumption is against the defendants, and decisions of the District Court upon discretionary matters should not be interfered with; (6) the enforcement of the criminal law demands that bail pending appeal should be denied, where it is apparent to the trial court that conviction is proper, and appeal is prosecuted, not with the hope of new trial, but on frivolous grounds merely for delay. The United States attorneys also presented a copy of a letter of February 6, 1926, of the United States attorney, Mr. Ward, to Circuit Judges Anderson and Page, and their answer, dated February 9, 1926. It appears that no application was ever made to the Circuit Court of Appeals, but, on the day after sentence was imposed, some of the defendants — and while it does not clearly appear, it may be assumed all the petitioners — did apply for bail to Circuit Judges Page and Anderson. The applications were denied. No papers were filed, no record was made, and no minutes of what was said at the hearing were taken. However, the letter of the United States attorney to the Circuit Judges and their answer gives an account of the hearing.
Where a writ of error has been issued and citation has been served in a criminal case, the Circuit Justice is authorized to fix and allow bail. See sections 119, 120, 121, Judicial Code (Comp. St. §§ 1111, 1112, 1113). In the exercise of its power to establish rules and regulations for the conduct of the business of the court (section 122, Judicial Code Comp. St. § 1114), the Circuit Court of Appeals of the Seventh Circuit, by its rule 32, expressly declares:
The First, Second, Third, Fifth, Sixth, and Eighth circuits have similar rules. See, respectively, 150 F. p. xlvi; 285 F. p. xvi; 224 F. p. x; 159 F. p. lxxxv; 202 F. p. viii; 188 F. p. xxii. These rules, in substance, follow rule 36 promulgated by the Supreme Court in 1891. See 139 U. S. 701, and also In re Claasen, 11 S. Ct. 735, 140 U. S. 200, 208, 35 L. Ed. 409.
The power to grant bail is attended by the duty to hear applications therefor.
As to supersedeas and bail after sentence. It is the purpose of the law — and many statutes, federal and state, have been enacted — to safeguard litigants so far as possible against erroneous judgments. Review in appellate courts is favored in all cases where the grounds on which it is claimed are assigned in good faith on advice...
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