Grace v. United States

• Decision Date: 10 March 1925
• Docket Number: No. 4312.,4312.
• Citation: 4 F.2d 658
• Parties: GRACE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

4 F.2d 658 (1925)

GRACE et al. v. UNITED STATES.^*

No. 4312.

Circuit Court of Appeals, Fifth Circuit.

February 12, 1925.

Rehearing Denied March 10, 1925.

J. M. Foster and Frank J. Looney, both of Shreveport, La., and H. S. Powell, Jos. Mahoney, and Pat McNalley, all of El Dorado, Ark. (H. K. Smith, of Shreveport, La., on the brief), for plaintiffs in error.

Philip H. Mecom, U. S. Atty., and J. Fair Hardin, Asst. U. S. Atty., both of Shreveport, La., and Allan Sholars, Sp. Asst. U. S. Atty., of Monroe, La.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

On October 10, 1923, an indictment was returned at Monroe, in the Western district of Louisiana, against the plaintiffs in error, namely, W. Garland Grace, Andrew H. Colvin, Mabe T. Hall, Claude T. Grace, Bird Grace, Doyle Primm, Genie Duck, Walter Robinson, Jerry Graves, J. B. Hardy, and Clay Bowers, and 24 others, hereinafter referred to as the defendants, charging them under section 37, Penal Code (Comp. St. § 10201), with a conspiracy to commit an offense against the United States, to wit, to violate the act of Congress, October 29, 1919, known as the National Motor Vehicle Theft Act (Comp. St. Ann. Supp. 1923, §§ 10418b-10418f), which act makes it an offense to "transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen," and to "receive, conceal, store, barter, sell, or dispose of any motor vehicle, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen." The term "motor vehicle" by the terms of the act includes "automobile," "automobile truck," and virtually every conceivable variety of self propelled vehicle on land.

The indictment contains 17 counts. The first count charges the conspiracy, and, omitting the caption, names, and jurisdictional averments, the material allegations are these:

"The defendants did willfully, unlawfully, fraudulently and feloniously conspire, plan, confederate, and agree together, and with each other, and with divers persons, to your grand jurors unknown, to commit an offense against the United States of America, that is, that they, the defendants, would commit several acts made crimes and offenses by the act of Congress of the United States of October 29, 1919, known as the National Motor Vehicle Theft Act, in and by willfully and feloniously transporting and causing to be transported in interstate commerce from and out of the state of Arkansas, to and in to the state of Louisiana, and Western district of Louisiana, and from and out of the state of Louisiana, and Western district of Louisiana, to and in to the state of Arkansas, certain motor vehicles, knowing the same to have been stolen; and, further, in and by willfully, knowingly, unlawfully and feloniously receiving, concealing, storing, bartering, selling, and disposing of motor vehicles moving as a part of, and constituting, interstate commerce knowing the same to have been stolen, which said motor vehicle so to be received, concealed, stored, bartered, sold, and disposed of, as aforesaid, would be motor vehicles that had been stolen in the state of Arkansas, and in course of being transported in interstate commerce from and out of the state where stolen, as aforesaid, to and in to the state of Louisiana, and Western district of Louisiana.

"Overt Act.

"That in pursuance of the said unlawful conspiracy, and to effect the object of the same, the said _____ did transport, and cause to be transported, in interstate commerce, a certain motor vehicle, to wit, a Ford touring car, motor number 6611067, from El Dorado, in the state of Arkansas, to and in to the parish of Lincoln, state of Louisiana, Western district of Louisiana, and within the jurisdiction of this honorable court, at the time of said transporting of said motor vehicle, the said ______ well knew the same to have been stolen. * * *"

The remaining counts refer to the first count for the conspiracy charge. The overt acts charged in counts 1 to 9 are practically the same with a difference as to the persons committing the act and the automobiles transported. Counts 10 and 12 to 17 charge sales of automobiles, and count 11 charges concealment of an automobile.

The defendants filed a motion to quash the indictment on the following grounds, to wit: That the indictment is invalid because not found by the grand jury on competent evidence; that the indictment does not charge an offense; that the act of October 29, 1919, is unconstitutional as not within the authority of Congress to enact and is invalid because of uncertainty and indefiniteness. The motion to quash was overruled. A severance was granted as to nine of the defendants and the case went to trial. Thirteen of the defendants were dismissed by the court before the case was submitted to the jury, and verdicts of guilty were returned against the 13 remaining defendants. After the verdict, motions in arrest of judgment and for a new trial were overruled, and the court imposed a general sentence on each defendant, none exceeding 18 months' imprisonment, with fines not exceeding $500 against 4 of them. The defendants convicted sued out this writ of error, but before the argument in this court 2 of them withdrew their writs. This leaves before the court only the defendants named above.

The record contains some 1,736 pages. There are 102 bills of exception and 118 assignments of error, many of them unnecessary and some of them frivolous, a practice to be condemned and which has been frequently adversely criticized by the Supreme Court. Nearly all of the assignments of error might be disregarded on strict application of rule 11 of this court (set out in the margin)¹ but as is usual when a record of this size is piled up by zealous and industrious counsel, very few of the errors assigned are insisted upon or have been argued. Only these assignments argued orally and in the brief will be considered.

Under the practice obtaining in Louisiana, it is usual to incorporate in one pleading objections to an indictment properly raised by demurrer together with other objections requiring proof to sustain them, usually raised by motion to quash or plea. Considering the allegation that the grand jury returned the indictment on incompetent evidence, the rule is that a motion to quash is ordinarily addressed to the discretion of the court, and therefore a refusal to quash cannot generally be assigned as error. Logan v. United States, 144 U. S. at page 282, 17 S. Ct. 617, 36 L. Ed. 429. The motion was not verified, and no affidavits in support of the allegations were submitted to the court, although an attempt was made to introduce evidence to sustain the motion by putting the district attorney on the stand. It is only in rare cases that a motion of this kind should be considered. It would be utterly useless for prosecuting officers to seek an indictment on incompetent evidence, as no conviction could result from such evidence before the trial jury. If the court stopped in every case to go into the question of what transpired in the grand jury room, the prompt and orderly administration of justice would be very much hampered and to no good end. There was no abuse of discretion in overruling the motion on this ground. Holt v. United States, 218 U. S. 245, 31 S. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138.

With regard to the objections as to its form, the language of the indictment tracks the statute. It would add nothing to the allegations to say, as the defendants contend should have been done, that the automobiles had previously been stolen, or to set out the names of the true owners, or describe the localities where the theft occurred. The crime charged is a conspiracy to transport, conceal, and sell, knowing the automobiles to have been stolen, and not the crime of larceny of the article. The indictment fully informed defendants of what they had to meet.

This brings up for consideration the third ground urged in the motion, i. e., that the act of October 29, 1919, is unconstitutional and uncertain. Very little need be said on the question. As yet, the Supreme Court has not had occasion to pass on it, but the Court of Appeals for the Fourth Circuit, in Kelly v. United States, 277 F. 405, and the Court of Appeals of the District of...