Billingsley v. United States

• Decision Date: 31 March 1910
• Docket Number: 3,021.
• Citation: 178 F. 653
• Parties: BILLINGSLEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

178 F. 653

BILLINGSLEY v. UNITED STATES.

No. 3,021.

United States Court of Appeals, Eighth Circuit.

March 31, 1910

[Copyrighted Material Omitted]

J. C Robberts and John Devereux (John J. Hildreth and J. F Curran, on the brief), for plaintiff in error.

John Embry, for the United States.

Before HOOK and ADAMS, Circuit Judges, and AMIDON, District Judge.

ADAMS Circuit Judge.

This is a writ of error to review a judgment of the District Court for the Western District of Oklahoma against plaintiff in error for violating the national banking laws.

1. He was indicted in March, 1906, before Oklahoma became a state. The indictments, of which there were four or more, disclosed on their faces that the proceedings occurred in the 'District Court of the First Judicial District in and for the County of Logan and Territory of Oklahoma'; that county being the one in which the offenses were alleged to have been committed. The proceedings, therefore, were in the court having actual jurisdiction over the alleged offenses. The indictments recite that they were found by 'grand jurors of the United States within and for said county,' and the minutes of the court recite that they were returned into 'the United States District Court of Logan County, Oklahoma Territory.' Objections are now made by the defendant that because territorial grand jurors were not, accurately speaking, 'grand jurors of the United States,' and because the territorial courts were not, accurately speaking, District Courts 'of the United States' (Clinton v. Englebrecht, 13 Wall. 434, 20 L.Ed. 659), the indictments were not found by any lawful grand jury or returned into any legally constituted court.

The fact that the territorial courts exercised a dual criminal jurisdiction, one over offenses against the United States and the other over offenses against the territory, rendered it not inapt to add the words 'United States' in describing the former, to indicate that the jurisdiction invoked was one to enforce the laws of the United States as distinguished from those of the territory. This seems to have been a harmless kind of a practice indulged for convenience sake, and the objection to it, as a ground for reversal, is, in our opinion, untenable.

2. The enabling act approved June 16, 1906 (34 Stat. 267, 275, c. 3335, U.S. comp. St. Supp. 1909, p. 154), provided that the state of Oklahoma, when admitted into the Union, should constitute two judicial districts to be known as the 'Eastern' and 'Western' districts; the former to comprise what was formerly the Indian Territory and the latter what was formerly the Oklahoma Territory. It was provided that Circuit and District Courts in the Western District should be held in Guthrie, Oklahoma City, Enid, and Lawton.

The amended act of March 4, 1907 (34 Stat. 1286, c. 2911), provided that:

'Prosecutions for all crimes and offenses committed within the territory of Oklahoma or in the Indian Territory, pending in the District Courts of the Territory of Oklahoma or in the United States Courts in the Indian Territory, upon the admission of such territories as a state, which, had they been committed within a state, would have been cognizable in the federal courts, shall be transferred to and be proceeded with in the United States Circuit or District Court established by this act for the district in which the offenses were committed, in the same manner and with the same effect as if they had been committed within a state.'

Pursuant to these provisions, the present prosecutions were duly transferred to the District Court of the United States for the Western District of Oklahoma. The first ensuing term of that court was held at Guthrie, in Logan county, within which the offenses were alleged to have been committed. The court at that term, on motion of the defendant, continued the causes 'to the next term of said court to be begun and held at Oklahoma City in said district on the second day of March, 1908. ' At the coming in of that term the defendant appeared and moved to remand the causes to Guthrie for trial on the ground that he was entitled to be tried in the county wherein his offenses were alleged to have been committed. This motion was denied, and the action of the court in so doing is assigned for error.

In support of this assignment, defendant invokes the provisions of the organic act of the territory (Wilson's Rev. & Ann. St. 1903, pp. 75, 76) that the territory shall be divided into three judicial districts, that a District Court shall be held in each county of the district, and that all offenses committed in the territory shall be prosecuted and tried within the county where committed, and also the sixth amendment to the Constitution of the United States, which ordains: 'That in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district where the crime shall have been committed, which district shall have been previously ascertained by law.'

The defendant having committed the offenses in question within a territory as distinguished from an organized state renders the sixth amendment inapplicable, and he cannot invoke its provisions for his protection. United States v. Dawson, 15 How. 467, 488, 14 L.Ed. 775; Jones v. United States, 137 U.S. 202, 211, 11 Sup.Ct. 80, 34 L.Ed. 691; Cook v. United States, 138 U.S. 157, 181, 11 Sup.Ct. 268, 34 L.Ed. 906.

In the amended enabling act (34 Stat. 1286) Congress, apparently acting under article 3, Sec. 2, of the Constitution, which provides that when crimes are not committed within any state 'the trial shall be at such place or places as the Congress may by law have directed,' dealt with the new condition of things brought about by the admission of the territories in question into the Union and designated a place for the trial of criminal actions. It provided that pending prosecutions for offenses theretofore committed in territorial times should be transferred and thereafter conducted in the Circuit or District Court for the district in which they were committed. This means that the creation of judicial districts by the new state was intended to supersede the old territorial subdivisions, to substitute for jurisdictional purposes the new districts for the old territorial counties and enlarge the area of jurisdiction accordingly. Pickett v. United States (decided Feb. 21, 1910) 216 U.S. 456, 30 Sup.Ct. 265, 54 L.Ed. . . . .

We held in Clement v. United States, 79 C.C.A. 243, 149 F. 305, and Spencer v. United States, 95 C.C.A. 60, 169 F. 562, that, when a judicial district has been established or 'ascertained' by law, a jury may be lawfully drawn from any portion of the territory constituting such district regardless of the particular subdivision thereof in which for convenience a trial may be had.

We conclude, therefore, that defendant suffered no deprivation of any constitutional right by being compelled to proceed to trial at the Oklahoma City term of the District Court.

Before taking up other assignments, it may be well to state that out of many indictments which were returned against the defendant four went to trial. Each charged that he, as president, and one Robb, jointly indicted with him as vice president, made a false entry in a book of the Capitol National Bank of Guthrie, Okl., 'with the intent to deceive any agent appointed to examine the affairs of the bank,' in violation of the provisions of section 5209 of the Revised Statutes (U.S. Comp. St. 1901, p. 3497). These four indictments were consolidated for trial and a trial was had resulting in a verdict in each case of guilty as to Billingsley and not guilty as to Robb. These indictments were known throughout the trial and will be hereafter referred to as Nos. 161, 162, 172, and 178.

No. 161 contained two counts upon the second of which only defendant was found guilty. The other indictments contained one count only, and defendant was found guilty on each of them. He was sentenced to a term of imprisonment on each indictment-- all to run concurrently.

3. The next assignment of error is that the court erred in overruling a general demurrer to the second count of indictment No. 161 for the reason that it did not specifically enough designate the agent intended to be deceived by the false entry. The court charged that defendants made the entry 'with the intent to deceive any agent appointed under the laws of the United States to examine the affairs of the said bank.'

In the case of United States v. Britton, 107 U.S. 655, 2 Sup.Ct. 512, 27 L.Ed. 520, where this character of averment was under consideration, Mr. Justice Woods, speaking for the Supreme Court, said:

'It appears from this section (5240 (U.S. Comp. St. 1901, p. 3516)) that the appointment of these agents is not permanent, but occasional and temporary, and that the appointments are made as often as shall be deemed necessary and proper. It is, therefore, apparent that the statute which punishes false entries, made with intent to deceive such agents, refers to any entries, made with that intent, whether before or after the appointment of the agent. * * * The agents are often purposely appointed without notice to the association.'

The indictment in that case charged that the false entry was made to deceive 'any agent who might be thereafter appointed by the Comptroller of the Currency to examine the affairs of said association. ' That is not essentially different from the charge in the present case.

In view of the object sought to be accomplished by the appointment of agents to examine national banks and the uncertainty as to times of appointment or persons to be appointed, it seems impossible that an officer could have in mind any particular person...