Lias v. United States, 3147.

Citation51 F.2d 215
Decision Date08 July 1931
Docket NumberNo. 3147.,3147.
PartiesLIAS et al. v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Howard D. Matthews and J. Bernard Handlan, both of Wheeling, W. Va. (G. Alan Garden and Handlan, Garden & Matthews, all of Wheeling, W. Va., on the brief), for appellants.

Frank E. Parrack, Asst. U. S. Atty., of Kingwood, W. Va., and Russell L. Furbee, Asst. U. S. Atty., of Fairmont, W. Va. (Arthur Arnold, U. S. Atty., of Parkersburg, W. Va., and Wm. C. Howard, Asst. U. S. Atty., of Wheeling, W. Va., on the brief), for the United States.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

NORTHCOTT, Circuit Judge.

The three appellants together with six others were indicted in the District Court of the United States for the Northern District of West Virginia, at the October term, charged with conspiring to violate the National Prohibition Act in violation of section 37 of the Federal Penal Code (18 USCA § 88), and were tried at the same term at which the indictment was returned. The three appellants had previously been arrested and taken before a commissioner in September, 1930.

The evidence, as it appears from the record, shows that the appellants were engaged in running what they claimed was a gambling house in the city of Wheeling on premises which consisted of a two-story brick building; that the entrance to this building was through a screen door, then through a front room to an electrically-operated door, behind which there was another small room with an electrically operated door leading to a space under the stairway; that there was a room on the premises fitted up as a bar; that there was a gambling room, in which there was a dice table and other gambling paraphernalia; that there were three electrically operated doors through which entrance was gained to the inside of the house. Some witnesses for the prosecution, who were prohibition agents, testified that they had visited the premises on different occasions and bought whisky there. There was evidence tending to show that appellant Lias was in charge of the operation of the premises, and that the others were employees. Two of those indicted were not apprehended, and as to four of the defendants the jury found a verdict of not guilty, returning a verdict of guilty as to the three appellants. Upon this verdict the court entered judgment, sentencing appellants to the penitentiary, from which action of the court this appeal was taken.

There were twenty-nine assignments of error, but these have been grouped in brief and argument on behalf of appellants into twelve propositions, the first of which is that the court erred in not granting a continuance or a change of venue, on the ground of the illness of the leading counsel for the defend ant, who was the head of the firm representing them and because of articles appearing in various newspapers dealing with the case and an alleged attempt to kill one of the prosecution's witnesses in the case.

The question of continuance was one addressed to the sound discretion of the trial court. This has been repeatedly held by this court, and it is scarcely necessary to cite authorities to that effect. Baker v. United States (C. C. A.) 21 F.(2d) 903; Johnson v. United States (C. C. A.) 5 F.(2d) 471; Guardian Assurance Co. of London v. Quintana, 227 U. S. 100, 33 S. Ct. 236, 57 L. Ed. 437; Fidelity & Deposit Co. v. L. Bucki & Son Lumber Co., 189 U. S. 135, 23 S. Ct. 582, 47 L. Ed. 744.

Here defendants were represented by two other members of the law firm, of which the leading member was ill; one of the attorneys representing appellants at the trial having been present before the commissioner. There was no good reason for continuance of the case upon ground of the illness of one of several attorneys, and the motion was properly denied. The defendants had ample notice as to the charges against them, were ably represented at the trial, and were in no way taken by surprise.

With regard to the newspaper articles, an examination of the record shows that the court examined the jurors as to the articles, and ascertained that not a one of the jurors constituting the panel was so biased or prejudiced on account of the articles that he could not be fair and render a true verdict according to the law and the evidence; and it further appears that the jurors denied that they had formed or expressed any opinion as to the guilt or innocence of the defendants or any of them. There is nothing in the record indicating that the defendants were not tried by a fair and impartial jury. Objection was raised as to the manner of interrogating the jurors upon their voir dire, but the methods of procedure in the selection of the jury were proper and in accordance with the decisions of this court. Ungerleider v. United States (C. C. A.) 5 F.(2d) 604.

The trial court is invested with a wide discretion in determining the competency of the jurors, and the court's judgment in this respect will not be interfered with except for an abuse of the discretion. In Assaid v. United States (C. C. A.) 10 F.(2d) 752, will be found a full discussion of this question by Judge Waddill, and a number of authorities are there cited, all of which hold to the effect above stated.

It is contended that the court erred in admitting evidence with regard to certain overt acts not mentioned in the indictment, and as to which the defense was taken by surprise. Motion was made by defense for a bill of particulars. Upon agreement of the United States attorney, made in open court, that the files of his office, relating to the case, would be thrown open to the inspection and use of counsel for defendants, and that he would not introduce testimony relating to any overt act not set out in...

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  • Giacalone v. Lucas, 20707.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 30 Julio 1971
    ......v. . William LUCAS, Sheriff, Respondent-Appellee. . No. 20707. . United States Court of Appeals, Sixth Circuit. . July 30, 1971. 445 F.2d 1239 ...1936), cert. denied, 297 U.S. 705, 56 S. Ct. 501, 80 L.Ed. 993; Lias v. United States, 51 F.2d 215 (4th Cir. 1931), aff'd per curiam, 284 U.S. ......
  • United States v. Fioravanti
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 16 Junio 1969
    ...United States v. Commerford, 64 F.2d 28, 31 (2 Cir. 1933); Shaffman v. United States, 289 F. 370, 374-75 (3 Cir. 1923); Lias v. United States, 51 F. 2d 215, 218 (4 Cir.), aff'd 284 U.S. 584, 52 S.Ct. 128, 76 L.Ed. 505 (1931); Weathers v. United States, 126 F.2d 118, 119-120 (5 Cir. 1942); I......
  • United States v. Rogers, 8214.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 4 Abril 1961
    ...States, 4 Cir., 275 F.2d 716; Orton v. United States, 4 Cir., 221 F.2d 632; Wolin v. United States, 4 Cir., 211 F.2d 770; Lias v. United States, 4 Cir., 51 F.2d 215, affirmed 284 U.S. 584, 52 S.Ct. 128, 76 L.Ed. 505; Johnson v. United States, 4 Cir., 5 F.2d 5 In Brasfield, the Supreme Court......
  • Janko v. United States, 16330.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 16 Agosto 1960
    ...to make a mistake. The government doesn't want you to make a mistake." 17 The cases are numerous but see, for example, Lias v. United States, 4 Cir., 51 F.2d 215, 218, affirmed 284 U.S. 584, 52 S.Ct. 128, 76 L.Ed. 505; United States v. Allis, C.C.E.D.Ark., 73 F. 165, 182-183 (by Judge Walte......
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