Breese v. United States

• Decision Date: 06 February 1906
• Docket Number: 585.
• Parties: BREESE v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

143 F. 250

BREESE v. UNITED STATES.

No. 585.

United States Court of Appeals, Fourth Circuit.

February 6, 1906

Charles A. Moore (Moore & Rollins, on the briefs), for plaintiff in error.

A. E Holton, Dist. Atty. (A. H. Price, Asst. U.S. Atty., on the brief), for the United States.

Before GOFF, Circuit Judge, and WADDILL, and McDOWELL, District judges.

McDOWELL District Judge.

The plaintiff in error, who will hereinafter be referred to as the defendant, was the president of a national bank in Asheville, N.C., and was on November 6, 1897, indicted for alleged violations of section 5209, Rev. St. (U.S. Comp St. 1901, p. 3497). On that day, in pursuance of an agreement entered into by counsel for defendant and the then assistant district attorney, the following order was entered:

'United States v. W. E. Breese.

'Filed Nov. 6, 1897.

'In the above entitled action it is ordered by the court that the defendant, being now arraigned, be and he is now required to enter his pleas to the indictment in said cause and he does not plead not guilty thereto, but such plea shall not operate or have the effect to prevent him taking advantage upon motion in arrest of judgment or on a motion for a new trial of all matters and things which could be taken advantage of by motion to quash or demurrer. Upon motion in arrest of judgment or for a new trial, all such matters and things shall be heard and determined as if the same were being heard upon motions to quash or demurrer. This order shall apply to any and all other indictments pending in this court against the defendant.

'Robert P. Dick, U.S. Judge.

'Concurred in. Covington, Ass't U.S. Att'y.'

This cause was first tried in November, 1898, and the judgment against the defendant was ultimately reversed by this court. Breese v. U.S., 106 F. 680, 45 C.C.A. 535; Id., 108 F. 804, 48 C.C.A. 36. On the next trial the jury failed to agree. And this happened again on the third trial. The last trial was commenced July 12, 1904, and resulted in a verdict of guilty on certain counts in the indictment and a judgment that the defendant be imprisoned in the penitentiary at Atlanta for a term of seven years.

At the trial held in March, 1902, the defendant moved to quash the indictment 'for certain reasons contained in a plea and affidavits which are filed. ' The plea and affidavit referred to do not appear in the record, nor does it appear that the motion was acted upon. In advance of the last trial the defendant filed a paper in the nature of both a plea in abatement and a motion to quash the indictment and certain affidavits in support thereof. This plea was demurred to, and the demurrer was sustained. The plea asserts, in brief, that one C. C. Phifer, one of the members of the grand jury that returned the indictment, was during the year preceding the finding of the indictment the owner of more than $100 worth of personal property, taxes on which had been properly assessed, and that he had not paid his taxes upon said property. Precisely similar statements are made also as to one W. H. Martin, another of the grand jurors. It is also alleged that defendant did not learn of the facts above mentioned, concerning Phifer, until February, 1902, and concerning Martin, until July 7, 1904.

The affidavits which appear in the record are those of A. B. Fortune and W. H. Martin. These affidavits were filed with and were treated as parts of the plea in abatement. The affidavit of Martin is to the effect that he was assessed with personal property and real estate taxes for the year 1896, and that he had not paid any of said taxes at the time he served as a grand juror. The affidavit of Fortune, register of deeds for Buncombe county, and ex officio clerk of the board of county commissioners, is to the effect that Martin was returned as insolvent, and that the tax collector was allowed a credit for the amount of personal property taxes assessed against him. Martin's real estate was sold under mortgage about February 1, 1897, and the purchaser at a subsequent date not set out paid the taxes thereon for 1896.

The trial court in sustaining the demurrer to the plea in abatement reserved the right to finally decide the question on motion to be made after verdict of guilty, should such verdict be returned. And after the verdict was returned the defendant renewed the motion to quash the indictment. This motion was overruled, and this action of the court was duly excepted to.

The objection of the two grand jurors is founded upon section 1722, Code N.C., as amended, which reads as follows:

'The commissioners for the several counties, at their regular meeting on the first Monday of June, in each year, shall cause their clerks to lay before them the tax returns for the preceding year for their county, from which they shall proceed to select the names of such persons only as have paid tax for the preceding year and are of good moral character and of sufficient intelligence.'

The first question presented for consideration is whether or not the objection was presented in due time. The rights of the defendant in this respect are governed by the order of November 6, 1897. If it were a fact that under the practice of the federal courts in North Carolina in criminal causes a motion to quash could only be made for errors apparent from the record, we should be constrained to hold, as urged by counsel for the government, that the intent of that order was merely to save to the defendant the right to raise subsequent to the plea of not guilty such objections as are ordinarily raised by demurrer. But there seems to be no doubt that a motion to quash has long been recognized in the federal courts in that state as a method of making objections dehors the record equally as proper as a plea in abatement. U.S. v. Kilpatrick (D.C.) 16 F. 765. And under the common-law practice in the state courts of North Carolina it appears that the motion to quash for objections dehors the record was used as well as pleas in abatement (State v. Haywood, 94 N.C. 847; State v. Gardner, 104 N.C. 739, 10 S.E. 146), prior to the enactment of the statute (Code, Sec. 1741) requiring that exceptions to grand jurors be taken by motion to quash the indictment. However unwise it may have been on the part of the prosecution to consent to such an order, it seems to us beyond dispute that the defendant was solemnly and beyond recall given the right to make any objection that could be made by motion to quash on a motion in arrest of judgment or on motion for a new trial. In other words, the right to make objections which regularly must be made in advance of plea of not guilty was saved to the defendant until after an adverse verdict.

As above intimated, a plea in abatement is one of the proper methods in the federal courts in North Carolina of raising objections to the qualifications of the grand jurors who returned the indictment. U.S. v. Kilpatrick, supra; Crowley v. U.S., 194 U.S. 461, 24 Sup.Ct. 731, 48 L.Ed. 1078. In filing the paper now under consideration, whether treated as plea in abatement or a motion to quash, in advance of the last trial, we think the defendant properly raised for decision the question next to be considered, and we must now consider the validity of the objection to the jurors.

As the question as to the qualification of the two grand jurors was raised in proper manner and in due time, the ruling of the trial court thereon is subject to review, and for error in deciding such question adversely to the defendant this court must reverse. Crowley v. U.S., supra. Reading the plea in abatement and the two affidavits together, and they were thus treated in the lower court, the only contention that can be made in support of the proposition that Phifer and Martin were qualified grand jurors is as follows: There is no allegation that Martin was not assessed for 1896 for capitation tax, or that he had not paid this tax. As to Phifer, it is not alleged that he had not been assessed with and had not paid both his poll tax and real estate taxes. The contention of the government is that a mere failure to pay a part of the taxes assessed against a juror does not disqualify him. The defendant's contention is that a juror must have paid all the taxes properly assessed against him in order to be qualified.

To our surprise we have been unable to find that this question has ever been presented to, and expressly decided by, the Supreme Court of North Carolina. If the contention of the defendant be sound, it must at least be said that the language used in section 1722, supra, is not as happily chosen as might be. In strictness a citizen who has paid his capitation tax although delinquent in the payment of sundry other taxes assessed against him, is one who has 'paid tax.' However, we have been led to the conclusion that the intent of the Legislature in enacting section 1722 was as is contended by counsel for the defendant; and that a failure to pay any part of the total assessment is, under such circumstances as we have here, a...