Boatright v. United States, 11336
| Decision Date | 03 August 1939 |
| Docket Number | No. 11336,11337.,11336 |
| Citation | 105 F.2d 737 |
| Parties | BOATRIGHT v. UNITED STATES. FOREMAN v. SAME. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Harry L. Thomas, of Kansas City, Mo. (Inghram D. Hook, of Kansas City, Mo., on the brief), for appellants.
Richard K. Phelps, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for the United States.
Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.
Appellants, who will be referred to herein as defendants, were indicted under Section 338, Title 18 U.S.C.A., in an indictment containing three counts, charging them with devising a scheme to defraud and for obtaining money by means of false promises, pretenses, and representations, and with the use of the United States mails in the furtherance of such scheme and device. The sufficiency of the indictment was not challenged. Defendants were convicted on all three counts, and seek reversal for alleged errors in the court's charge to the jury.
In setting out and describing the scheme alleged to have been devised by the defendants, the indictment seems to mingle with the description of the alleged scheme allegations of evidentiary matters. The scheme to defraud, while not the gist of the offense, should, of course, be set out with sufficient particularity and definiteness to advise defendants as to the particulars thereof. In this indictment there is such a mingling of allegations descriptive of the scheme with those of the alleged acts done, including allegations of mere breach of contract, that it is extremely difficult to spell out from the commingled allegations a definite description of the alleged scheme. While the sufficiency of the indictment is not before us, we think the blending of these various characters of averments has doubtless made it difficult for the trial court to make a clear and succinct statement of the essential ingredients of the offense charged. The testimony was comparatively brief, comprising about 115 pages, yet on this brief record we find that the court's charge comprises some 40 pages.
It is contended by the appellants that: (1) The court, in reviewing the evidence, over-emphasized, repeated and reiterated matters of evidence favorable only to the Government, and ignored and omitted any reference to the evidence favorable to the defendants; (2) the instructions warranted a verdict of guilty without finding the necessary constituents and elements of the offense charged; (3) the court placed upon the defendants the burden of establishing their innocence; (4) the instructions warrant the jury in finding the defendants guilty regardless of the use of the United States mails; (5) the court in its instructions improperly defined reasonable doubt and took from the defendants the right to be acquitted if the jury entertained such a doubt.
We have studied the entire charge to the jury with some care. In a criminal case in the Federal court, the trial judge has the power to superintend and direct the trial, to review the evidence, and to advise on the facts, but this power must not be abused. If the testimony is summed up or analyzed, care must be taken to sum up and analyze both sides, and the judge must not become an advocate. It is doubtless difficult at times to visualize the line between fairness and unfairness and between legitimate comment and advocacy. In this case, the court undertook to review what was designated as uncontroverted facts. In doing so, no mention whatever was made of any evidence favorable to the contention of the defendants, although there was such evidence in the record, and at least some of it stood uncontradicted. The charge is replete with repetitions and reiterations of evidence favorable to the Government, with no reference to any evidence favorable to the defendants. In the course of the charge the court, among other things, said: "Now, then, having thus explained what I mean by a scheme, let's examine the testimony in this case and ascertain whether or not there might be deduced from the testimony an intent to defraud from the facts in the case." Then follows an argument for the apparent purpose of demonstrating that the testimony established a guilty intent on behalf of the defendants.
Again, the court said:
Again, the court said: ...
To continue reading
Request your trial
-
People v. Ross
...614, 66 S.Ct. 402, 90 L.Ed. 350; Bihn v. United States, 328 U.S. 633, 637, 66 S.Ct. 1172, 90 L.Ed. 1485; see also Boatright v. United States, 8 Cir., 105 F.2d 737, 740.) Moreover, since it served to stifle the doubts that might reasonably have been engendered by the inconsistencies in the p......
-
United States v. England
...element of the offense charged. Christoffel v. United States, 338 U.S. 84, 89, 69 S.Ct. 1447, 93 L.Ed. 1826; Boatright v. United States, 8 Cir., 105 F.2d 737, 740. This includes the fact in this case that the car was a part of interstate commerce when the defendant sold it. Wolf v. United S......
-
United States v. Natale
...513 F.2d 1087, 1119-20 (2d Cir.1975), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975), with Boatright v. United States, 105 F.2d 737, 739 (8th Cir.1939).11 In the course of instructing the jury, the trial judge informed them that the defense of entrapment is not available wher......
-
United States v. Boyd, 29793.
...was suggesting to the jury that Boyd could not have been unaware that he was dealing with stolen property. Cf. Boatright v. United States, 8 Cir. 1939, 105 F.2d 737, 739. There was no error as to these aspects of the charge to the The judgment is reversed and the case is remanded for furthe......