Addis v. United States

• Decision Date: 21 January 1933
• Docket Number: No. 692.,692.
• Citation: 62 F.2d 329
• Parties: ADDIS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

62 F.2d 329 (1932)

ADDIS et al. v. UNITED STATES.

No. 692.

Circuit Court of Appeals, Tenth Circuit.

December 15, 1932.

Rehearing Denied January 21, 1933.

C. L. Kagey, of Wichita, Kan. (Hal M. Black and P. L. Dwinnell, both of Wichita, Kan., on the brief), for appellants.

S. M. Brewster, U. S. Atty., and Donald Little, Asst. U. S. Atty., both of Topeka, Kan., for the United States.

Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.

PHILLIPS, Circuit Judge.

John Addis and A. C. Addis were charged by indictment containing five counts with violations of the National Prohibition Act (27 USCA). The first and second counts charged unlawful possession of substandard fluid extract of ginger containing more than one-half of one percent of alcohol by volume, intended and fit for beverage purposes. The third and fourth counts charged unlawful sales of substandard fluid extract of ginger containing more than one-half of one percent of alcohol by volume, intended and fit for beverage purposes. The fifth count charged the maintenance of a common nuisance on February 28, 1930, at 124-126 South Oak Street, Wichita, Kansas, by the possession and sale of a large quantity of substandard fluid extract of ginger containing more than one-half of one percent of alcohol by volume, intended and fit for beverage purposes. Defendants were convicted and sentenced on each of the several counts.

In that portion of the transcript of record in which matters are set forth that are a part of the record proper, appears the following:

"Now on this 30th day of September, 1931, come the parties hereto same as on yesterday, the defendants, John Addis and A. C. Addis, being present in person, and the jury being called and all being present, the trial of said case is proceeded with; and the parties having concluded the introduction of their evidence and rested, comes now the defendants and move the Court to instruct the jury to return verdicts of not guilty as to each of them on each and every count of the indictment, which motion is by the Court denied, to which ruling of the Court defendants, and each of them, except."

The foregoing is apparently taken from the clerk's entries and is not signed or in anywise authenticated by the trial judge.

The bill of exceptions does not contain any motion for directed verdicts of not guilty, nor any request for a peremptory charge of not guilty, nor any ruling of the court on such motion or request.

Motions for a directed verdict, requests for a peremptory charge, instructions given and instructions refused in criminal and law actions are not a part of the record proper, which consists of the pleadings, process, verdict, and judgment. Buessel v. United States (C. C. A. 2) 258 F. 811, 815; Clune v. United States, 159 U. S. 590, 593, 594, 16 S. Ct. 125, 40 L. Ed. 269; United States v. Taylor, 147 U. S. 695, 698, 699, 13 S. Ct. 479, 37 L. Ed. 335; Blake v. United States (C. C. A. 1) 71 F. 286; Metropolitan R. Co. v. Columbia, 195 U. S. 322, 332, 25 S. Ct. 28, 49 L. Ed. 219; Eldorado Coal & Min. Co. v. Mariotti (C. C. A. 7) 215 F. 51, 54; Suydam v. Williamson, 20 How. 427, 433, 437, 15 L. Ed. 978. A statement in the transcript of the record that certain instructions were given, or requested and refused, or that a motion for a directed verdict was made and denied, over the certificate of the clerk, avails nothing. Such matters can be brought upon the record only by a proper bill of exceptions. Stockton v. Bishop, 4 How. 155, 166, 11 L. Ed. 918; Metropolitan R. Co. v. Columbia, supra; Clune v. United States, supra. Since it does not appear from the bill of exceptions that motions for directed verdicts were duly made and denied, we are precluded from passing upon the assignments of error predicated thereon.

However, we have carefully examined the bill of exceptions and are of the opinion that the evidence supports the verdicts of guilty on each count of the indictment.

Certain of the errors assigned are predicated on instructions to the jury, given and refused.

The court refused to give defendants' requested instruction to the effect that before the jury could convict the defendants it must find beyond a reasonable doubt that the defendants knew that the ginger extract was fit for beverage purposes and intended it should be so used. The court in its general charge instructed the jury as to the several elements of each of the offenses charged, and included therein the elements of knowledge, fitness of the ginger extract for beverage purposes, and intent that it should be so used. It further charged the jury that the burden was on the Government to establish every element of the offenses charged. It also quoted section 4, title 27 USCA, wherein the element, "fit for use for beverage purposes," is included in the definition of intoxicating liquor.

The Court refused to give defendants' requested instruction to the effect that, before the jury could convict the defendants under the fifth count, it must find that the defendants committed the crime charged in that count at the identical place charged. In its general charge the Court, in reciting the elements of the offense charged in the fifth count, stated the place as 124-126 South Oak Street, Wichita, Kansas, and it further instructed the jury that in passing on that count it could not consider evidence as to any possession or sale of ginger extract at any other place.

The Court refused to give defendants' requested instruction to the effect that evidence of sales of ginger extract by the defendants, other than those charged in counts three and four, had been introduced, and that the jury should consider such evidence only in passing on count five. It is difficult to understand why counsel urge this refusal as error. The jury was instructed, both at the time such evidence was introduced and in the general charge, that it should consider such evidence only in passing on the offense charged in count five.

We are of the opinion that the general charge sufficiently covered the matters included in the requested instructions.

The court charged the jury that if the ginger extract did not conform to the formula set out in the United States Pharmacopoeia and contained more than one-half of one percent of alcohol by volume, it should be classified as intoxicating liquor. It is urged that this portion of the charge was erroneous because it omitted the element, "fit for use for beverage purposes." No objection or exception was taken to this portion of the charge.

Alleged errors during the progress of the trial should be called to the trial court's attention by specific objection and exception in order that it may have the opportunity to correct the error. In the absence of such specific objection and exception, alleged trial errors ordinarily will not be reviewed on appeal. Order of United Commercial Travelers of America v. Greer (C. C. A. 10) 43 F.(2d) 499, 502; Chicago, M. & St. P. R. Co. v. Harrelson (C. C. A. 8) 14 F.(2d) 893, 896; American Sugar Refining Co. v. Nassif (C. C. A. 1) 45 F.(2d) 321, 326.

There is a well recognized exception to this general rule that in criminal cases involving the life or liberty of the accused, the appellate courts of the United States may notice and correct serious errors in the trial of the accused, fatal to his rights, although those errors were not challenged or reserved by objections, motions, exceptions, or assignments of error. Bogileno v. United States (C. C. A. 10) 38 F.(2d) 584, 587; Van Gorder v. United States (C. C. A. 8) 21 F.(2d) 939, 942...