Barham v. United States
| Decision Date | 17 September 1926 |
| Docket Number | No. 7281.,7281. |
| Citation | 14 F.2d 835 |
| Parties | BARHAM v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Fred A. Tillman, of Pawhuska, Okl. (John W. Tillman and Welcome D. Pierson, both of Pawhuska, Okl., on the brief), for plaintiff in error.
W. L. Coffey, Asst. U. S. Atty., of Tulsa, Okl. (John M. Goldesberry, U. S. Atty., of Tulsa, Okl., on the brief), for the United States.
Before STONE and LEWIS, Circuit Judges, and SYMES, District Judge.
The defendant below, Burt Barham, was convicted in the District Court for the Northern District of Oklahoma for the felonious possession of intoxicating liquor in an Indian country, and brings error. Two objections only are seriously pressed on this appeal.
First, that the indictment failed to state facts sufficient to constitute the crime charged. The material part of the indictment is as follows:
"That Burt Barham, Tina Barham, * * * in Osage county, state of Oklahoma, Northern district of Oklahoma, and within the jurisdiction of this court, did, on or about the 2d day of August, 1925, willfully, unlawfully, and feloniously have possession of certain intoxicating liquor, to wit, one gallon and one-half pint of whisky, in and upon an Indian country, to wit, Osage county, Oklahoma, contrary to the form of the statute," etc.
It is said that this is indefinite and uncertain, does not apprise the defendant of the charge against him, and requires him to meet testimony that at any time in the day or night, within three years of the filing of the indictment, or at any place in said county, he possessed whisky.
The question was not called to the attention of the trial court, either by a demurrer to the indictment, motion to quash, or in any other manner. The indictment states a statutory offense in the words of the statute; so is good against attack made after trial, and especially when raised in this court for the first time. In Ledbetter v. U. S., 170 U. S. 606 at page 613, 18 S. Ct. 774, 776 (42 L. Ed. 1162) it is said: "While in this country it is usual to state the town as well as the county, it has not been generally deemed necessary to do so, and most of the authorities assume that an allegation is sufficient after verdict which shows it to have been done within the jurisdiction of the court."
And on page 614 of the same case (18 S. Ct. 777): "We do not wish to be understood as approving the practice that was pursued in this case, or even as holding that this indictment might not have been open to special demurrer for insufficiency as to the allegations of time and place, but upon motion in arrest of judgment we think it is sufficient."
See, also, Case v. U. S. (C. C. A.) 6 F. (2d) 530.
Secondly, our attention is called to certain language of the court found in the instructions. Plaintiff in error argues that the comments of the court were such as to prevent the defendant from having a fair and impartial trial, and that the court usurped the functions of the jury. The language objected to is that in which the court stated that he drew certain inferences, and expresses the opinion that certain material facts were true, although, as the court says, "there is no evidence of that." It is then stated that the court not only did not believe...
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