Breese v. United States

• Decision Date: 07 February 1913
• Docket Number: 973.
• Citation: 203 F. 824
• Parties: BREESE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

203 F. 824

BREESE et al. v. UNITED STATES.

No. 973.

United States Court of Appeals, Fourth Circuit.

February 7, 1913

[Copyrighted Material Omitted]

Chas A. Moore, John S. Adams, Thos. S. Rollins, and Locke Craig all of Asheville, N.C. (Moore & Rollins and Adams & Adams, all of Asheville, N.C., on the brief), for plaintiffs in error.

A. E. Holton, U.S. Atty., of Winston-Salem, N.C. (A. L. Coble, Asst. U.S. Atty., of Statesville, N.C., on the brief), for the United States.

Before GOFF, Circuit Judge, and McDOWELL and ROSE, District Judges.

McDOWELL District Judge.

On October 5, 1897, an indictment was found charging Wm. E. Breese, Joseph E. Dickerson, and Wm. H. Penland (who was not tried) with conspiracy to embezzle, abstract, and willfully misapply the funds and credits of the First National Bank of Asheville, N.C. Sections 5209 and 5440, Rev. Stats. U.S. (U.S. Comp. St. 1901, pp. 3497, 3676). Having saved to themselves by force of an agreed order the right to plead not guilty, without thereby waiving the right to subsequently raise objections to the indictment, the defendants on the date last mentioned pleaded not guilty. Nothing having been done in the interval, the three defendants on May 28, 1908, filed a verified motion to quash the indictment on the ground that some of the grand jurors were not qualified. Subsequently this motion was abandoned, except as to one grand juror-- N.W. Blackburn. This motion was overruled, and at the next calling of the case, on June 21, 1909, the defendants filed another motion to quash the indictment, which was also overruled. The result of the trial was a verdict of guilty as to Breese and Dickerson, and judgment in accordance with the verdict. For the opinion of the trial court, see U.S. v. Breese et al. (D.C.) 172 F. 761; Id., 172 F. 765. So far as seems necessary, the numerous assignments of error will be discussed, but not necessarily in the order in which they were presented.

We shall first consider the objection to the qualification of the grand juror Blackburn. The ground of objection to Blackburn was that although, as is alleged, he owned over $200 worth of property in 1896, he was not assessed for taxes for that year, his name was not on the list of taxpayers, and he had not paid any taxes for the year 1896.

'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. ' Section 1722, Code of N.C.

In Breese v. U.S., 143 F. 250, 74 C.C.A. 388, this court was called upon to construe this statute only in respect to the failure of a grand juror to pay a part of the taxes actually assessed against him. The question now presented is quite different. State v. Perry, 122 N.C. 1018, 1022, 29 S.E. 384 is, we think, conclusive on the proposition that the absence from the list of taxpayers of the name of a grand juror (and the consequent nonpayment of taxes) does not of itself disqualify such juror, if it does not appear that his name should have been on the list.

Recognizing the force of the government's contention that mere poverty does not disqualify, the defendants attempted, on the hearing of their motion to quash, to prove that Blackburn owned over $200 worth of property in 1896 and that he should have been on the assessment list. The evidence submitted on behalf of the defendant consisted almost entirely of ex parte affidavits, which were all in the handwriting of one of the defendants. In opposition to these affidavits, the government introduced several witnesses who testified viva voce. J. T. Boyer, one of the persons who had made an affidavit relied upon by the defendants, was introduced as a witness by the government. By him it was shown that he had never verified his so-called affidavit, and that the only statement in the paper of any moment was concerning a matter of which he had no personal knowledge. From the testimony of J. H. Tesh, introduced by the government, it appeared that Blackburn disposed of his cow, wagon, and horse in 1890, or shortly thereafter, and that he retained only a small supply of old household furniture, which the witness did not consider worth over $25 (the amount allowed to be held exempt from taxation). The defendants went to trial of the motion on affidavits, without the right to plead poverty as the reason for failing to introduce their witnesses and subject them to cross-examination. Under section 878, Rev. Stats. (U.S. Comp. St. 1901, p. 668), the defendants, if without means, could have had these affiants summoned to court at the expense of the government.

The result of putting one of the affiants on the witness stand was so disastrous, and threw such strong suspicion on the remaining affidavits, that we are led to the conclusion that the trial judge properly decided on the evidence before him that Blackburn had no property in 1896 subject to taxation. And it is to be borne in mind that on review of a ruling of such character the appellate court cannot reverse, except that it find that the trial court was plainly wrong. Reynolds v. U.S., 98 U.S. 145, 156, 25 L.Ed. 244. In so far as Blackburn's alleged disqualification is concerned, the case at bar falls under the ruling in State v. Perry, supra, and we must hold that the motion to quash made in 1908 was properly overruled.

The motion to quash made in 1909 next demands consideration. The grounds of this motion were: (1) That the court had not made an order directing the issue of venire facias; (2) that the indictment was returned by the foreman of the grand jury alone; (3) that no record entry was made of the return of the indictment.

Of the first ground of objection it is to be said that, while there was no order of court directing in express terms that writ of venire facias issue, an order was made and entered of record at the April, 1897, term requiring the clerk and jury commissioner to draw the jurors for service at the October, 1897, term. Section 810, Rev. Stats. (U.S. Comp. St. 1901, p. 627), reads:

'No grand jury shall be summoned * * * unless * * * the judge * * * orders a venire to issue therefor.'

But, without reference to any question of waiver, we are of opinion that in enacting this statute Congress had no intent to legislate as to the validity of indictments. The purpose was merely to prevent the expense of having a grand jury unnecessarily summoned. The order of the April term above mentioned so clearly indicated an intent on the part of the judge to have venire issue that we find no merit in the objection. In U.S. v. Reed, 2 Blatchf. 435, 27 Fed.Cas. 727, 733, Mr. Justice Nelson held that a verbal order from the judge to the clerk to issue venire facias for a grand jury was sufficient. In Fries Case, Whart. St. Tr. 458, 3 Dall. 515, 9 Fed.Cas. 826, 923, Mr. Justice Iredell observed that a venire issued with the sanction of the court has the same effect as though the express order of the court had been annexed.

The second ground of objection raised certain questions which this court certified to the Supreme Court of the United States. The answer of that court has disposed of this ground of objection adversely to the plaintiffs in error. See Breese et al. v. U.S., 226 U.S. 1, 33 Sup.Ct. 1, 57 L.Ed. . . . .

The third ground, also, seems to us entirely without merit. It is not true that the clerk made no entry of the return of the indictment. He did make an entry reading as follows:

'United States v. W. E. Breese, W. H. Penland, and J. E. Dickerson.

'Indct.: Conspiracy and Embezzlement, Octo. Term, 1897. ' A true bill. J. M. allen, Foreman.' 'In the above-entitled cause it is ordered by the court, upon motion of the district attorney, that the said cause, together with all the papers therein, be transferred to Asheville, to be there tried at the next term of said court to be held on the 1st Monday in November next.

'It is further ordered that a capias issue forthwith from this court, returnable to the next term of the said Asheville court, and that a justified bond in the sum of thirty thousand dollars, to be approved by the clerk of the federal court at Asheville, be required of each of the defendants above named.'

While this entry is incomplete and informal, the defect here is properly to be classed as a defect of form. See section 1025, Rev. Stats. (U.S. Comp. St. 1901, p. 720).

The next assignment we shall consider relates to the admission of certain evidence. In March, 1894, in anticipation of obtaining a loan of $25,000 from an insurance company, the trustees of the First Baptist Church of Asheville executed five promissory notes, each for $5,000, payable respectively in one, two, three, four, and five years, to the order of J. E. Dickerson and G. W. Purefoy, which were secured by a mortgage or deed of trust covering the church property, executed by the church trustees to one Murphy, trustee. For some reason the proposed arrangement failed, and a loan of $15,000 from a building and loan association was subsequently obtained by the church. On December 21, 1894, in the handwriting of the defendant Dickerson, there was entered on the margin of the record of the deed of trust to Murphy a recital that the notes had been fully satisfied and the deed of trust was released of record over the signature of Murphy, trustee. Dickerson was the treasurer of the church, and two of the $5,000 notes, purporting to be secured by mortgage, were not canceled, and were by him put into the possession of the First National Bank of...