Ayers v. United States

• Decision Date: 22 April 1932
• Docket Number: No. 9387.,9387.
• Citation: 58 F.2d 607
• Parties: AYERS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

58 F.2d 607 (1932)

AYERS v. UNITED STATES.

No. 9387.

Circuit Court of Appeals, Eighth Circuit.

April 22, 1932.

Walter L. Brown, Robert C. Knox, and L. B. Smead, all of El Dorado, Ark., for appellant.

W. N. Ivie, U. S. Atty., and G. T. Sullins, Asst. U. S. Atty., both of Ft. Smith, Ark.

Before VAN VALKENBURGH and SANBORN, Circuit Judges, and DAVIS, District Judge.

SANBORN, Circuit Judge.

On October 19, 1931, an information was filed against the appellant and his wife, charging them jointly with three violations of the National Prohibition Act. The first two counts charged illegal possession of intoxicating liquor on June 27, 1931, and June 28, 1931, respectively. The third count charged the maintenance of a common nuisance on June 28, 1931. Pleas of not guilty were entered.

Upon the trial, at the close of the testimony, the appellant requested "that the court instruct the jury to return a verdict of not guilty as to the defendant J. T. Ayers, which request was refused by the court, and the defendant J. T. Ayers saved his exceptions." The jury acquitted the appellant upon the possession counts of the information, and convicted him upon the nuisance count, and he was thereafter sentenced to serve six months in jail. He thereupon appealed.

The assignment of errors is as follows:

"1. That the verdict of the jury and the judgment of the court are contrary to the evidence.

"2. That the verdict of the jury and the judgment of the court are contrary to the law.

"3. The verdict of the jury and the judgment of the court are contrary to both the law and the evidence.

"4. That the evidence introduced in the cause did not justify a submission to the jury a question of fact on the third count of the indictment.

"5. That the evidence in the cause was not sufficient upon which to base a conviction of this defendant on the third count of the indictment.

"6. That the judgment of the court sentencing this defendant to serve six months in jail is excessive.

"7. That the court erred in permitting S. M. Gurley, J. W. Ledbetter and W. F. Willis, over the objection of the defendant, to testify to finding whisky and beer on the night of June 27, 1931, as evidence against this defendant."

The errors specified in the brief of the appellant are identical with those stated in the first five assignments.

The government contends that, since there was no sufficient motion for a directed verdict, and since the assignment of errors and specification of errors are insufficient and do not comply with the rules of this court, we are precluded from considering the question of the sufficiency of the evidence to justify the verdict.

That the specifications of error and the first five assignment of error — with which we are only concerned, the other two assignments having been abandoned Allen v. Hudson (C. C. A.) 35 F.(2d) 330 — are insufficient is obvious.

Referring to such assignments, Judge Gilbert, of the Ninth Circuit, in the case of Hecht v. Alfaro (C. C. A.) 10 F.(2d) 464, 466, said: "They bring up for review no ruling of the trial court. They do not show that at any point in the proceedings the court below committed error. Upon no question thus presented does it appear that the trial court was requested to make a ruling or give an instruction to the jury. This court has no authority to retry an action at law and render such judgment as we may think should have been rendered. We can review only rulings made by the trial court on questions brought to its attention and passed upon by it. Oregon R. & Nav. Co. v. Dumas, 181 F. 781, 104 C. C. A. 641; Bort v. E. H. McCutchen & Co., 187 F. 798, 109 C. C. A. 558; United States v. National City Bank (C. C. A.) 281 F. 754. These considerations are sufficient to dispose of the case upon the writ of error from this court." See, also, Southern Surety Co. v. Lee County Bank, Title & Trust Co. (C. C. A. 8) 36 F.(2d) 220; Flanagan v. Benson (C. C. A. 8) 37 F.(2d) 69; Allen v. Hudson, supra; Stewart v. United States (C. C. A. 9) 12 F.(2d) 524.

Even if the denial of the appellant's motion in the court below for a directed verdict had been assigned and specified as error, it would not have entitled him to a review of the question of the sufficiency of the evidence to justify the verdict. The applicable rule is stated in Mansfield Hardwood Lumber Co. v. Horton (C. C. A. 8) 32 F.(2d) 851, 852, in which this court said:

"Under the first specification of error appellant has argued the question whether there was any substantial evidence to support a verdict for plaintiff.

"We are constrained to hold that the motion was not sufficient to raise the question. For many years this court has laid down the rule that the question whether there was any substantial evidence to support a judgment for the opposite party can be raised, so as to be reviewable, only by a motion, request for a ruling, request for a declaration of law, or other equivalent action, at the close of the evidence; that such motion, request, or other equivalent action must be based upon a specific ground or grounds stated in apt words and brought sharply to the attention of the court; that a ruling must be obtained and an exception preserved. A general motion stating no grounds is not sufficient. The same rule applies to cases tried with a jury and to cases tried to the court where the statutory requisites waiving a jury have been fulfilled. Citing cases.

"The rule is at once fair to the trial court, because attention is sharply and specifically called to the precise point involved; fair to opposing counsel, because it gives an opportunity to oppose the motion understandingly; fair to the appellate court, because it enables that court to see whether the point raised in that court is the same as that which was raised and passed upon by the trial court."

See also, Public Utilities Corporation v. McNaughton (C. C. A. 8) 39 F.(2d) 7; Williams Bros. v. Heinemann (C. C. A. 8) 51 F.(2d) 1049; Rossi v. United States (C. C. A. 8) 9 F.(2d) 362, 365; Murphy v. United States (C. C. A. 8) 39 F.(2d) 412; Schindler v. United States (C. C. A. 9) 24 F.(2d) 204.

Notwithstanding this rule, this court, in order to prevent an injustice, may notice a plain error even in a civil case. United States v. Tennessee & Coosa R. Co., 176 U. S. 242, 256, 20 S. Ct. 370, 44 L. Ed. 452; Baltimore & O. R. Co. v. McCune (C. C. A. 3) 174 F. 991, 992; Radetsky v. Gramm-Bernstein Motor Truck Co. (C. C. A. 8) 4 F.(2d) 965, 968; New York Life Insurance Co. v. Rankin (C. C. A. 8) 162 F. 103, 108. In criminal cases, in order to prevent a miscarriage of justice, a wider discretion to review errors not properly saved or presented for review is recognized.

In Wiborg v. United States, 163 U. S. 632, 658, 16 S. Ct. 1127, 1137, 41 L. Ed. 289, the Supreme Court said: "No motion or request was made that the jury be instructed to find for defendants, or either of them. Where an exception to a denial of such a motion or request is duly saved, it is open to the court to consider whether there is any evidence to sustain the verdict, though not to pass upon its weight or sufficiency. And, although this question was not properly raised, yet if a plain error was committed in a matter so absolutely vital to defendants, we feel ourselves at liberty to correct it." In that case, the court examined the question of the sufficiency of the evidence to support the conviction of two of the defendants, and set aside the verdict as to them.

In Crawford v. United States, 212 U. S. 183, 194, 29 S. Ct. 260, 264, 53 L. Ed. 465, 15 Ann. Cas. 392, this language is found: "In criminal cases courts are not inclined to be as exacting with reference to the specific character of the objection made as in civil cases. They will in the exercise of a sound discretion, sometimes notice error in the trial of a criminal case, although the question was not properly raised at the trial by objection and exception. Wiborg v. United States, 163 U. S. 632, 659, 16 S. Ct. 1127, 1197, 41 L. Ed. 289, 299." See, also, Burns v. United States, 274 U. S. 328, 341, 47 S. Ct. 650, 71 L. Ed. 1077; Gambino v. United States, 275 U. S. 310, 319, 48 S. Ct. 137, 72 L. Ed. 293, 52 A. L. R. 1381.

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