Buchanan v. United States

• Decision Date: 01 November 1926
• Docket Number: No. 7315.,7315.
• Citation: 15 F.2d 496
• Parties: BUCHANAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

15 F.2d 496 (1926)

BUCHANAN v.UNITED STATES.

No. 7315.

Circuit Court of Appeals, Eighth Circuit.

November 1, 1926.

Franklin H. Griggs, of Tulsa, Okl., for plaintiff in error.

John M. Goldesberry, U. S. Atty., and W. L. Coffey, Asst. U. S. Atty., both of Tulsa, Okl.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and JOHN B. SANBORN, District Judge.

JOHN B. SANBORN, District Judge.

Plaintiff in error, Homer Buchanan, jointly with V. N. Church, was charged, by an indictment returned in the District Court of the Northern District of Oklahoma, under one count, with the unlawful possession of intoxicating liquor in Tulsa county, Okl., "where the said liquor was had, possessed and kept by the said defendants, having been within the limits of the Indian Territory, and a part thereof prior to the admission of the state of Oklahoma into the Union as one of the United States of America, and being then and there a place where the introduction of spirituous and intoxicating liquor is and was prohibited by the federal statutes," and, under a second count, with the unlawful transportation of intoxicating liquor, in violation of section 3,title 2, of the National Prohibition Act(Comp. St. § 10138½aa).A demurrer to the indictment was overruled.A motion for a separate trial for Buchanan was denied.The case was tried.At the close of the government's case, a demurrer to the evidence was also overruled.Buchanan rested; Church testified in his own behalf.A verdict was returned by the jury, finding the former guilty of the crimes charged, and acquitting his codefendant, Church.A motion for a new trial was denied, and Buchanan brings the case to this court by writ of error.

The questions presented by the assignments of error are: Did the court have jurisdiction?Was Buchanan entitled to a separate trial?Did the judge commit error in expressing his opinion in his charge to the jury?Is the verdict sustained by the evidence, and the judgment and sentence in accordance with the law?

It is claimed that Judge Kennamer, who tried the case, was without jurisdiction, because Congress, by the Act of February 16, 1925(43 Stat. 945 Comp. St. §§ 1088-1088e), exceeded its authority in assigning him to the Northern District of Oklahoma; that, for that reason, the indictment and the sentence must fall.This same contention was made and disposed of adversely to the contentions of the plaintiffs in error in the cases of Bland v. Kennamer, and Coatney v. Kennamer (C. C. A.)6 F.(2d) 130.

In the federal courts, joint defendants have no right to be tried separately.It is within the discretion of the trial judge to grant separate trials.Moore v. United States (C. C. A.)2 F.(2d) 839;Waldeck v. United States (C. C. A.)2 F.(2d) 243;Sullivan v. United States (C. C. A.)7 F.(2d) 355.Buchanan and Church were together in an automobile roadster with two gallons of grain alcohol, when arrested.The trial court evidently could see no reason for granting separate trials, nor do we see any.

Buchanan questions the right of the court to use the following language in his charge: "What I say to you is not binding on you; you are to determine all the facts.It just occurs to me it is a plain case of two men out there with two gallons of alcohol, in the liquor business.That is for you to determine, and what I say to you is not binding on you."

A direct and complete answer to this question is found in the decision of this court in Weiderman v. United States, 10 F.(2d) 745.The only difference between that case and this one is that there the expression of opinion complained of was more emphatic.The question as to how far a judge may go in expressing his opinion as to what the evidence proves is an interesting one.In the United States Supreme Court it has arisen in the following cases: Carver v. Jackson, 4 Pet. 1, 80, 7 L. Ed. 761;Magniac v. Thompson, 7 Pet. 348, 390, 8 L. Ed. 709;Mitchell v. Harmony, 13 How. 115, 131, 14 L. Ed. 75;Transportation Line v. Hope, 95 U. S. 297, 24 L. Ed. 477;St. Louis, Iron Mountain & Southern Ry. v. Vickers, 122 U. S. 360, 7 S. Ct. 1216, 30 L. Ed. 1161;United States v. Philadelphia & Reading Rd. Co., 123 U. S. 113, 8 S. Ct. 77, 31 L. Ed. 138;Rucker v. Wheeler, 127 U. S. 85, 8 S. Ct. 1142, 32 L. Ed. 102;Lovejoy v. United States, 128 U. S. 171, 9 S. Ct. 57, 32 L. Ed. 389;Simmons v. United States, 142 U. S. 148, 12 S. Ct. 171, 35 L. Ed. 968;Doyle v. Union Pacific Ry. Co., 147 U. S. 413, 13 S. Ct. 333, 37 L. Ed. 223;Lincoln v. Power, 151 U. S. 436, 14 S. Ct. 387, 38 L. Ed. 224;Allis v. United States, 155 U. S. 117, 15 S. Ct. 36, 39 L. Ed. 91;Starr v. United States, 153 U. S. 614, 14 S. Ct. 919, 38 L. Ed. 841;Wiborg v. United States, 163 U. S. 632, 16 S. Ct. 1127, 1197, 41 L. Ed. 289.

The rule is stated in Vicksburg & Meridian Rd. Co. v. Putnam, 118 U. S. 545, 553, 7 S. Ct. 1, 2(30 L. Ed. 257) as follows:

"In the courts of the United States, as in those of England, from which our practice was derived, the judge, in submitting a case to the jury, may, at his discretion, whenever he thinks it necessary to assist them in arriving at a just conclusion, comment upon the evidence, call their attention to parts of it which he thinks important, and express his opinion upon the facts, and the expression of such an opinion, when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jury, cannot be reviewed on writ of error."

This rule has been consistently followed by that court, and the only case we have found in which a judge has been reversed for expressing his opinion is Starr v. United States, 153 U. S. 614, 14 S. Ct. 919, 38 L. Ed. 841, although a somewhat similar situation is presented in Allison v. United States, 160 U. S. 203, 16 S. Ct. 252, 40 L. Ed. 395, involving the charge of the same trial judge, and Hickory v. United States, 160 U. S. 408, 16 S. Ct. 327, 40 L. Ed. 474.In the Starr Case, after stating the rule, the court says of the trial judge:

"But he should take care to separate the law from the facts, and to leave the latter in unequivocal terms to the judgment of the jury as their true and peculiar province.McLanahan v. Universal Insurance Co., 1 Pet. 170, 1827 L. Ed. 98.As the jurors are the triers of facts, expressions of opinion by the court should be so guarded as to leave the jury free in the exercise of their own judgments.They should be made distinctly to understand that the instruction is not given as to a point of law by which they are to be governed, but as a mere opinion as to the facts, to which they should give no more weight than it was entitled to.Tracy v. Swartwout, 10 Pet. 80, 969 L. Ed. 354;Games v. Stiles, 14 Pet. 32210 L. Ed. 476."

Further on in the same opinion, it is said:

"It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling.Hicks v. United States, 150 U. S. 442, 45214 S. Ct. 144, 37 L. Ed. 1137.The circumstances of this case apparently aroused the indignation of the learned judge in an uncommon degree, and that indignation was expressed in terms which were not consistent with due regard to the right and duty of the jury to exercise an independent judgment in the premises, or with the circumspection and caution which should characterize judicial utterances."

The court then sets forth the language of the charge complained of, which clearly shows that the trial judge, instead of instructing the jury, appealed to their passions and prejudices, and in effect argued to them the...