Balliet v. United States

• Decision Date: 21 March 1904
• Docket Number: 1,886.
• Citation: 129 F. 689
• Parties: BALLIET v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

129 F. 689

BALLIET v. UNITED STATES.

No. 1,886.

United States Court of Appeals, Eighth Circuit.

March 21, 1904

F. W Lehmann (S. F. Balliet, on the brief), for plaintiff in error.

Lewis Miles, U.S. Atty., for defendant in error.

Before SANBORN, THAYER, and HOOK, Circuit Judges.

THAYER Circuit Judge, .

This is a criminal action which was brought by the United States against Letson Balliet for an alleged violation of section 5480 of the Revised Statutes of the United States (U.S. Comp St. 1901, p. 3696). As no questions are raised in this court respecting the sufficiency of the indictment, it will suffice to say, generally, that two indictments were found against Letson Balliet, the plaintiff in error, which were subsequently consolidated for trial; that the indictments charged, in substance, that Letson Balliet, the plaintiff in error, had devised a scheme and artifice to defraud certain persons, which was to be consummated by opening correspondence with them by means of the United States mail that his scheme was to pretend that he was the owner of the White Swan Gold Mine, located at Baker City, in the state of Oregon, and to induce persons to subscribe and pay for stock in said mines by false representations as to the richness, value, condition, and output of the mines, with intent to convert the money so obtained from the sale of stock to his own use; and that in furtherance of such scheme he deposited various letters, circulars, newspapers, etc., in the mail, which were addressed to certain persons, all of which contained various false representations concerning the value and condition of the mines, that were known to him at the time to be untrue. The trial of the consolidated indictments resulted in the production of a great mass of evidence, oral and written, which tended to support the charge, and on the strength of which the accused was ultimately convicted.

In this court the accused seeks to obtain a reversal of the judgment below, because the names of certain witnesses who were allowed to testify in behalf of the government were not indorsed on the indictments prior to the trial, and because no notice was served upon the accused, in advance of the trial, that such persons would be produced as witnesses against him, also because incompetent testimony was introduced during the progress of the trial, and because the jury were misdirected. The record discloses that, by an order made by the District Court of the United States for the Southern District of Iowa in June, 1859, certain chapters of the Code of Iowa, relating to grand jurors and criminal procedure, were adopted and put in force in that District. Two sections of the local statute, which are now sections 5276 and 5373 of the Code of Iowa of 1897, that were so adopted and put in force, in substance, require the names of all witnesses on whose evidence an indictment is found to be indorsed thereon before it is presented in court, and also provide that the county attorney, in offering evidence in support of an indictment, shall not be permitted to introduce any witness who was not examined before a committing magistrate or the grand jury, and the minutes of whose testimony was not presented with the indictment, to the court, unless he shall have given the accused, at least four days before the commencement of the trial, a notice in writing stating the name, place of residence, and occupation of such witness, and the substance of what he expects to prove by him on the trial. It further appears that from and after the promulgation of the aforesaid rule, and up to the year 1893, it was the uniform practice in the federal courts for the Southern District of Iowa to indorse upon indictments found in those courts the names of witnesses who had testified before the grand jury. In the year 1893, however, during the progress of a criminal trial in the United States Court for the Southern District of Iowa, it was decided that on the trial of a criminal case the United States could introduce testimony of witnesses, other than those whose names were indorsed on the indictment, without having given the four days' notice prescribed by the local statute; and continuously since that ruling was made it has been the custom and practice, in the trial of criminal cases in the Southern District of Iowa, to permit the United States to introduce in its testimony in chief, as witnesses, persons whose names had not been indorsed on the back of the indictment, and to do so without giving any previous notice whatsoever to the defendant. This practice, as the record discloses, has been uniform from the year 1893 down to the time when the trial in the case at bar took place.

In view of these facts, we conclude that the judgment below should not be reversed because some witnesses were allowed to testify on behalf of the United States whose names were not indorsed on the indictments, although no notice was given to the accused that such witnesses would be produced. Except when a person is indicted for treason or some capital offense (vide section 1033, Rev. St.U.S. (U.S. Comp. St. 1901, p. 722)), there is no provision found in the federal statutes requiring the accused in a criminal action to be furnished with a list of the witnesses who will be produced against him, or requiring the names of witnesses to be indorsed on the indictment; and the fact that a special provision is made for advising the accused of the names of witnesses who will be produced on trials for treason and other capital offenses warrants the inference that in prosecutions for other offenses against the laws of the United States it is unnecessary to advise the accused of the names of witnesses, who will be sworn. The maxim, 'Expressio unius est exclusio alterius,' clearly applies. By virtue of section 1033 (page 722), supra, a person indicted for treason or a capital offense is entitled to be furnished with a list of witnesses to be produced, three days before the trial on an indictment for treason and two days before the trial in other capital cases, and, if the accused seasonably claims this right, it is error to put him on trial, and permit witnesses to testify against him, without furnishing him with a list. Logan v. United States, 144 U.S.263, 304, 12 Sup.Ct. 617, 36 L.Ed. 429. But in the absence of some statute prescribing a contrary rule, there is neither error nor irregularity in permitting a witness for the government to be sworn in criminal cases, other than those above mentioned, whose name does not appear on the back of the indictment or has not been furnished to the accused. Thiede v. Utah Territory, 159 U.S. 510, 515, 16 Sup.Ct. 62, 40 L.Ed. 237. Waiving, on this occasion, any consideration of the question whether it was competent for the Circuit Court of the United States for the Southern District of Iowa to adopt a rule, as it appears to have done, which would operate to exclude a witnesses in criminal proceedings, other than capital cases. persons who were qualified to testify under the laws of the United States, because their names were not indorsed on the indictment or furnished to the defendant, we are of opinion that, even if it was competent for the court to prescribe such a rule, the rule was practically abrogated and annulled, nearly 10 years before the case at bar was tried, by the same court which prescribed it, by the adoption of a contrary practice and by an uniform adherence to the contrary practice. The first ground of reversal is therefore untenable, and must be overruled.

The errors that are assigned because of the admission of incompetent evidence relate to two kinds of testimony: First, to oral testimony; and, second, to written and printed exhibits, consisting of letters, telegrams, circulars, and publications in various newspapers, which the defendant had caused to be printed and distributed by means of the mail. In so far as the assignments are addressed to oral testimony which was received on the trial, they will be ignored, because they are not assigned in conformity with rules 11 and 24 of this court (89 F. vii, xi, 32 C.C.A. xiv, xxiv), to which we have frequently alluded. Neither in the assignment of errors nor in the brief of counsel is the substance of the objectionable testimony quoted in full, as the rules require, nor are we referred to the pages of the record where the testimony is reported, so that we can find it conveniently without loss of time, and ascertain if a seasonable objection in due form was interposed when it was offered. Where this is not done, and the record, as in the present case, is lengthy, we will not consider objections to the admission or exclusion of oral testimony, as we have frequently decided. Lincoln Savings Bank & Safe-Deposit Co. v. Allen, 27 C.C.A. 87, 82 F. 148; City of Lincoln v. Sun Vapor Street Light Co., 8 C.C.A. 253, 59 F. 756; United States v. Indian Grave Drainage District, 29 C.C.A. 578, 85 F. 928. If counsel will not take the trouble to state the full substance of evidence which they claim to have been erroneously admitted, and point out the pages in the record where it can be found and examined, we may well assume that the alleged error is not material, and accordingly ignore it.

Concerning the written and printed exhibits which, as the plaintiff in error claims, were erroneously admitted in evidence, it is to be observed, in the first place, that some of them are not set out in full in the bill of exceptions, and, in the second place, that the objections which were made to the admission of all the exhibits were couched in the most general terms the objection being that they were 'incompetent, irrelevant, and immaterial.' None of the exhibits are copied in the bill at the places where they appear to have been offered and...