Jaramillo v. United States
| Decision Date | 03 April 1935 |
| Docket Number | No. 1192.,1192. |
| Citation | 76 F.2d 700 |
| Parties | JARAMILLO et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
George R. Craig and David A. Grammer, both of Albuquerque, N. M., for appellants.
Gilberto Espinosa, Asst. U. S. Atty., of Albuquerque, N. M. (Wm. J. Barker, U. S. Atty., of Santa Fé, N. M., on the brief), for the United States.
Before LEWIS and McDERMOTT, Circuit Judges.
On August 31, 1934, appellants and three others — Frank Brown, Vivian Tafoya and Robert Montoya — were indicted for conspiring to violate the statute prohibiting the sale of liquor to Indians (25 USCA § 241). Overt acts, setting up three separate sales from appellants to their co-conspirators and from them to Indians, were alleged to have been committed on August 16 and August 24, 1934. All were found guilty.
The proof established that appellants were running a place in Gallup where food and liquors were legally dispensed, and where a crap-game was operated back of the partition. Appellants sold liquor to their co-conspirators for sixty cents a half pint; they in turn sold it to Indians for a dollar a half pint. The co-conspirators loafed about appellants' place. Indians coming to the place would be met by one of the co-conspirators who would solicit them to buy liquor; after the price was agreed upon, one of the co-conspirators would go in, get the whisky, bring it out, deliver it, and keep the forty cents profit on the deal. On one occasion one of appellants talked to an Indian outside the place, whereupon one of the co-conspirators went in, bought the whisky, brought it out and delivered it to the Indian. Upon another occasion, appellants' employee who ran the crap-game invited one Crockett to sell whisky to Indians, and the sale was made to Crockett and he delivered it to Indians on the premises, one of appellants telling Crockett to let the Indians out the back door. An Indian testified that one of appellants solicited him to buy liquor, and the sale was made through one of the co-conspirators. This testimony draws a clear picture of the illegal sale of liquor to Indians through the instrumentality of loafers about the place. Appellants contradicted much of this testimony and stoutly maintained that they had no suspicion that their co-conspirators were selling to Indians; but such conflicts were for the jury.
We are asked to review the evidence in order to determine whether the jury's verdict is contrary to the facts; it is argued that the trial court should have instructed a verdict of not guilty. But no motion was made at the trial for such instruction. Section 879, Title 28 USCA, provides "There shall be no reversal in the Supreme Court or in a circuit court of appeals * * * for any error in fact." It has been repeatedly held that the sufficiency of the evidence to support a verdict will not be reviewed in the absence of a motion in the trial court presenting that legal question for determination. Caldwell v. United States (C. C. A. 10) 36 F.(2d) 738, certiorari denied, 281 U. S. 725, 50 S. Ct. 239, 74 L. Ed. 1143; Williams v. United States (C. C. A. 10) 66 F. (2d) 868. Nor are we required to review a ruling on evidence to which error is not assigned as provided by our Rule 11.
Appellants invoke the rule that an appellate court may notice a plain and vital error, even though not properly...
To continue reading
Request your trial
-
Roche v. Evaporated Milk Ass
...cases—a proposition which hardly needs its support. Miles v. United States, 103 U.S. 304, 313, 26 L.Ed. 481; e.g. Jaramillo v. United States, 10 Cir., 76 F.2d 700; Rosenberg v. United States, 8 Cir., 15 F.2d 179, 181; Jezewski v. United States, 6 Cir., 13 F.2d 599, 602; Stoecko v. United St......
-
Martin v. United States
...10 Cir., 64 F.2d 324; Telman v. United States, 10 Cir., 67 F.2d 716; Brayton v. United States, 10 Cir., 74 F.2d 389; Jaramillo v. United States, 10 Cir., 76 F.2d 700; Marx v. United States, 8 Cir., 86 F.2d 245; Marino v. United States, 9 Cir., 91 F.2d 691, 113 A.L.R. 975; Robinson v. United......
-
Corbin v. United States, 5736.
...2d 374, 375. 3 Crabb v. United States, 10 Cir., 99 F.2d 325, 326; Lewis v. United States, 10 Cir., 92 F.2d 952, 953; Jaramillo v. United States, 10 Cir., 76 F.2d 700, 701; Kelly v. United States, 10 Cir., 76 F.2d 847; Williams v. United States, 10 Cir., 66 F. 2d 868, 869; Armstrong v. Unite......
-
Suhay v. United States, 1589.
...it was not called to the attention of the trial court in any form. Strader v. United States, 10 Cir., 72 F.2d 589; Jaramillo v. United States, 10 Cir., 76 F.2d 700. This being a capital case, we disregard the omission to present the question to the court There were between forty-five and si......