Wolfson v. United States

• Decision Date: 10 April 1900
• Docket Number: 770.
• Parties: WOLFSON v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Fifth Circuit

101 F. 430

WOLFSON v. UNITED STATES. ^[1]

No. 770.

United States Court of Appeals, Fifth Circuit.

April 10, 1900

J. D Rouse (W. O. Hart, Wm. Grant, and A. G. Brice, on the brief) for plaintiff in error.

J. Ward Gurley, U.S. Atty.

Before PARDEE and SHELBY, Circuit Judges, and BOARMAN, District Judge.

SHELBY Circuit Judge, .

Three indictments were found against Frank B. Leefe, a bookkeeper of the Union National Bank of New Orleans, and Joseph N Wolfson, the plaintiff in error. All of the indictments were for offenses committed under section 5209 of the Revised Statutes of the United States. In the first indictment Leefe was charged in 91 counts with the abstraction of moneys notes, and credits of the Union National Bank of New Orleans, and Wolfson was charged with having aided and abetted him in such abstraction. In the second indictment Leefe was charged in 91 counts with having misapplied the moneys, notes, and credits of the Union National Bank of New Orleans, and Wolfson was charged with having aided and abetted him in such misapplication. In the third indictment Leefe was charged in 134 counts with having made false entries in the books of the Union National Bank of New Orleans, and Wolfson was charged with having aided and abetted him in such false entries. On motion of the district attorney the indictments were ordered to be consolidated, and tried as one case. The defendants were tried, and the jury returned a verdict of guilty. The defendants were then sentenced to imprisonment in the penitentiary for eight years. The defendant Wolfson thereupon sued out this writ of error, seeking to reverse the judgment against him. The record contains 457 printed pages. There are 24 assignments of error. It is conceded that several of the questions raised were decided adversely to the plaintiff in error by the circuit court of appeals for the Fifth circuit in recent cases involving indictments similar to those in the present case. Gardes v. U.S., and Girault v. Same, 58 U.S.App. 219, 30 C.C.A. 596, 87 F. 172; Gallot v. Same, 58 U.S.App. 243, 31 C.C.A. 44, 87 F. 446. We have carefully examined and considered all the assignments of error. In this opinion, however, we shall comment only on questions which we deem important, and which have not been decided in the cases above cited.

1. It is assigned that the court erred in overruling the motion to quash the indictments, because the grand jury that found the indictments was not lawfully constituted and impaneled. It is not alleged in the motion, or claimed, that there was an unfairness, that a prejudiced grand jury was selected, or that any one of the grand jurors was incompetent, or in any way disqualified. The questions raised relate to the procedure by which the grand jury was selected and impaneled. The following is the statute which it is claimed was violated:

'Every grand jury impaneled before any district or circuit court shall consist of not less than sixteen nor more than twenty-three persons. If of the persons summoned less than sixteen attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either immediately or for a day fixed, from the body of the district, and not from the bystanders, a sufficient number of persons to complete the grand jury. And whenever a challenge to a grand jury is allowed, and there are not in attendance other jurors sufficient to complete the grand jury, the court shall make a like order to the marshal to summon a sufficient number of persons for that purpose. ' Rev. St. § 808.

The court ordered that the names of 23 persons be drawn to constitute the grand jury. The court also ordered that 10 additional names of persons be drawn to serve as grand jurors. The grand jury was organized by first calling the 23 persons first drawn. Sixteen of them appeared, and were sworn as grand jurors, together with 7 of the 10 ordered to be drawn and summoned. A grand jury composed of these 23 persons was organized and sworn. The contention of the plaintiff in error is that, as 16 of the 23 persons first drawn appeared, the court was without jurisdiction or authority to impanel a grand jury composed of more than 16. It is also contended that the court was without authority to order drawn and summoned the 10 in addition to the venire of 23 persons. The practical question to be decided by this court is whether the trial court committed a reversible error in overruling the motion to quash the indictment. It is well settled that a motion of plea challenging the organization of a grand jury should be made at the first opportunity. A defendant under bond, whose case is to be examined by the grant jury, should, if opportunity is presented, make his objections to the grand jury before it passes on his case. He should not be permitted, knowing that his case is to be presented to the grand jury, and having an opportunity to object to its competency, to wait, and take chances, and then object to it after an indictment is found. If no opportunity is had to object before indictment, it may be made the first opportunity after indictment is found. Wolfson was first arrested on these charges on September 21, 1896, and gave bond on October 6, 1896, to appear before the circuit court of the United States for the Eastern district of Louisiana on the 2d day of November, 1896. The order to draw the grand jury was made on November 26, 1896. The grand jury was drawn and the venire summoned on November 30, 1896. The indictments were returned and filed in court 4 months and 20 days later (April 20, 1897), and 2 months and 13 days afterwards (July 3, 1897) the objection was first raised, by motion filed that day, to the manner of the organization of the grand jury. No explanation or reason is given for the delay. Under these circumstances we are constrained to hold that the objections come too late. In Agnew v. U.S., 165 U.S. 36, 17 Sup.Ct. 235, 41 L.Ed. 624, the defendant filed a plea in abatement seeking to quash the indictment because the grand jury had not been drawn and impaneled in conformity to law. The original venire was issued on November 18, 1895, and the second venire was issued on December 2, 1895. The court opened on December 3, 1895, and the indictment was returned on December 12, 1895. The defendant filed his plea on December 17, 1895. The supreme court held that the plea came too late. Mr. Chief Justice Fuller, delivering the opinion, said:

'Where he is notified that his case is to be brought before the grand jury, he should proceed at once to take exception to its competency, for, if he lies by until a bill is found, the exception may be too late. But where he has had no opportunity of objecting before bill found, then he may take advantage of the objection by motion to quash or by plea in abatement, the latter in all cases of contested fact being the proper remedy. * * * The plea does not allege want of knowledge of threatened prosecution on the part of defendant, nor want of opportunity to present his objection earlier, nor assign any ground why exception was not taken or objection made before; and, moreover, the plea is fatally defective in that, although it is stated that the drawing 'tended to his injury and prejudice,' no ground whatever are assigned for such a conclusion, nor does the record exhibit any such.'

When questions relating merely to the regularity of the organization of the grand jury are raised in time, they are not viewed with much favor. The courts would peremptorily check and punish an effort to corruptly organize a grand jury or would prevent any injustice or unfairness in its formation; but, when nothing of that kind is shown, or even alleged, the court is reluctant to grant a motion to quash the indictment on account of irregularities that work no hardship or injustice. In U.S. v. Eagan (C.C.) 30 F. 608 (one of the few cases that construe the statute in question here) it was insisted that there was an irregularity in the organization of the grand jury because five of the jurors were not drawn in the manner provided by the act of 1879. Judge Brewer said:

'But a challenge to a grand jury, based on the mere ground of irregularity in its organization, was never regarded with any favor; less so to-day then ever.'

Judge Thayer, in a concurring opinion in the above case, conceding that there had been an irregularity in choosing five of the grand jurors, said:

'But this irregularity in choosing the five grand jurors will not avail (after the jury has been sworn, and have found indictments) as ground for quashing the indictment so found, either on plea in abatement or otherwise, when it appears that the jurors so irregularly chosen were competent and qualified jurors, residing in the district, and that the only irregularity consists in the method of selecting them. The plea in abatement does not, in my judgment, state any fact with respect to the five additional grand jurors that would amount to a disqualification, either at common law or under the statutes of this state, if the defendant had been present to challenge them before they were sworn.'

It is unnecessary to express an opinion further on the question here raised. The trial judge was justified in overruling the motion to quash the indictment, because the objections to the procedure in organizing the grand jury were not made in proper time. To hold otherwise would be in conflict with Agnew v. U.S., supra.

2. It is assigned that the court erred in admitting, against the objection of the defendant, the testimony of Edward P. Moxey tending to show that the account of the defendant with the Union National Bank of New Orleans had been largely overdrawn, as appeared from alleged entries in the books of that bank prior to the 21st...