Ogden v. United States

• Citation: 112 F. 523
• Decision Date: 02 January 1902
• Docket Number: 13.
• Parties: OGDEN v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

112 F. 523

OGDEN v. UNITED STATES.

No. 13.

United States Court of Appeals, Third Circuit.

January 2, 1902

Dimner Beeber, for plaintiff in error.

J. W Thompson and James B. Holland, for defendant in error.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

GRAY Circuit Judge.

The plaintiff in error in this case was, on the 21st, 22d, and 23d days of November, 1900, tried for selling oleomargarine without being sufficiently stamped, upon two indictments,-- No. 25, of November sessions, 1899, and No. 37, of May sessions, 1900. The result of that trial was that the jury found the plaintiff in error guilty in manner and form as he stood indicted in indictment No. 25, November sessions, 1899 and guilty in manner and form as he stood indicted in the fourth and fifth counts in indictment No. 37, May sessions 1900. On December 15, 1900, the district court set aside the said verdicts, and granted a new trial (105 F. 371), on the ground that the plaintiff in error was injured by the publication of a prejudicial and inflammatory newspaper article concerning him during the trial. He was again called for trial on the 25th of February, 1901. After the jury was sworn, the district attorney announced that he would try the defendant upon all the counts in bill No. 25, November sessions, 1899, and upon the fourth and fifth counts in the bill No. 37, May sessions, 1900, consolidated as indictment No. 25. These were the counts in the two indictments upon which the defendant had been found guilty on the first trial. On this second trial the defendant was found guilty upon all the counts in the first indictment, and upon counts fourth and fifth of the second indictment. The verdict was returned February 25, 1901.

The bill of exceptions, signed and sealed by the trial judge, and so made a part of the record, contains the following statement of facts:

'Immediately upon the rendering of the verdict the defendant's counsel asked leave to move for a new trial, which request was refused by the court. Afterwards, on February 27, 1901, the defendant took certain testimony, and handed the notes thereof, with a written motion for a new trial, to the clerk of the court. A copy of both papers was handed to the judge, but no leave of court was obtained to file these papers of record. On March 1, 1901, when the defendant was called for sentence, his counsel called these papers to the attention of the court, but the court declined to consider them, on the ground that leave to move for a new trial had already been refused. To this refusal of the court, on March 1st, the defendant did then and there except. The motion, with the reasons for a new trial, and the testimony taken in support of the motion, are appended to this bill of exceptions.'

The motion and reasons thus referred to in the bill of exceptions, so far as they concern us here, are set forth in the record:

'And now the defendant, by his attorney, moves the court for a rule for a new trial, and in support of his said motion files the following reasons: (1) Because the jury, upon retiring to deliberate upon and to find a verdict, took with them and kept during all their deliberations in the jury room, as one of the exhibits in the case, the indictment against the defendant No. 25, November sessions, 1899, upon the back of which was indorsed the verdict of the jury upon the trial had on the said indictment on the 21st, 22d, and 23d of November, 1900, which indorsement is as follows: 'And now, the 24th day of November, A.D. 1900, the jurors impaneled in this case upon their oaths and affirmations to say that the defendant, David S. Ogden, is guilty in the manner and form as he stands indicted, and they further find him to be the proprietor of the Ridge Avenue Beef Company,'-- which indictment is one of the two tried last Monday, the 25th of February, 1901, and contains the counts for the sales of oleomargarine on the 6th and 13th of March, 1899, and the 14th and 23d of September, 1899; being four of the five sales which the United States offered evidence to show on the trial held on the 25th of February, 1901, were illegal sales of oleomargarine. (2) Because the jury, upon retiring to deliberate upon and to find a verdict, took with them, and kept during all their deliberations in the jury room, as one of the exhibits in the case, the indictment against the defendant, No. 37, May sessions, 1900, upon the back of which was indorsed the verdict of the jury upon the trial had on the said indictment on the 21st, 22d, and 23d of November, 1900, which indorsement is as follows: 'And now, the 24th day of November, A.D. 1900, the jurors impaneled in this cause upon their oaths and affirmations do say that the defendant, David S. Ogden, is guilty in manner and form as he stands charged in the fourth and fifth counts in the indictment, and not guilty as to the remaining counts, and they further find him to be the proprietor of the Ridge Avenue Beef Company,'-- which indictment is one of the two tried last Monday, the 25th of February, 1901, and contains counts Nos. 4 and 5 (the only counts upon which a trial was had on Monday, February 25, 1901), for the sale of oleomargarine on the 30th of September, 1899.'

The facts, as stated in these reasons, were supported by the testimony of several jurors and that of a subordinate in the district attorney's office and of one of the counsel for the defendant. The facts testified to are not disputed, and upon them is based the third assignment of error, which is the only one presented for the consideration of this court. It is as follows:

'Third. Because the learned judge erred in excluding the testimony taken Wednesday, February 27, 1901, before Commissioner William W. Craig, which was offered in open court by the defendant in support of his motion for a new trial, and in refusing to entertain the motion for the new trial for the reasons set forth in the motion and supported by the testimony before the said commissioner, which motion and reasons and testimony are as follows.'

It is not disputed that in the courts of the United States the allowance or refusal of a new trial rests in the sound discretion of the court to which the...