Baker v. United States

• Decision Date: 08 January 1926
• Docket Number: No. 4423.,4423.
• Parties: BAKER v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

10 F.2d 60 (1926)

BAKER v. UNITED STATES.

No. 4423.

Circuit Court of Appeals, Sixth Circuit.

January 8, 1926.

Charles A. Stainback, of Somerville, Tenn., and D. B. Puryear, of Memphis, Tenn., for plaintiff in error.

W. H. Fisher, Asst. U. S. Atty., of Memphis, Tenn. (S. E. Murray, U. S. Atty., and A. A. Hornsby, Asst. U. S. Atty., both of Memphis, Tenn., on the brief), for the United States.

Before DONAHUE, MOORMAN, and KNAPPEN, Circuit Judges.

MOORMAN, Circuit Judge.

Charles W. Baker and A. S. Waller, commander and clerk, respectively, of the local camp of the Woodmen of the World at Rossville, Tenn., were indicted on six counts, charged in each of them with use of the mails in furtherance of a scheme to defraud an organization known as the Sovereign Camp of the Woodment of the World. Waller was acquitted, but Baker was convicted on four counts. He insists here that the proceeding was void, because the indictment was not returned by a lawfully constituted grand jury.

The question was raised below by plea in abatement filed immediately after the return of the indictment and before any other plea had been entered. The grand jury was summoned under an order directing the drawing of the names of 71 persons from the jury box for jury service at the May, 1924, term, without designating that any of them should be drawn as grand jurors. From those summoned there were selected and sworn under direction of the court, as the clerk testified, the first 21 for grand jury service. Defendant says that, as it was not stated in the order that the 71 persons or any number of them were to be summoned as grand jurors, there could not be a legal grand jury constituted of those persons. Section 284 of the Judicial Code (Comp. St. § 1261), relied on by defendant, provides: "No grand jury shall be summoned to attend any district court unless the judge thereof, in his own discretion or upon a notification by the district attorney that such jury will be needed, orders a venire to issue therefor," etc. The purpose of this, as decided in Breese v. United States, 203 F. 824, 122 C. C. A. 142, was economic, and not that grand jurors should be summoned as such. Besides, the question is settled in this jurisdiction by Abramson et al. v. United States (C. C. A.) 2 F. (2d) 595, where it was ruled that there was a substantial compliance with the requirements of the statutes if qualified persons whose names had been drawn from the box and duly summoned by the marshal for jury service were under orders of the court placed on the grand jury list. We see no reason to change this ruling.

Nor is the indictment bad for duplicity. While it is stated that the scheme was intended to defraud, not only the Sovereign Camp, but Robinson, Mahan, Gurkin, and various others who were members of and interested in the Woodmen, it is not charged in terms that the three individuals named were to be defrauded by means of the surrender of their policies, although such not improbable result might be...