Buie v. United States, 7509.

• Decision Date: 27 May 1935
• Docket Number: No. 7509.,7509.
• Citation: 76 F.2d 848
• Parties: BUIE v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

76 F.2d 848 (1935)

BUIE v. UNITED STATES.

No. 7509.

Circuit Court of Appeals, Fifth Circuit.

April 10, 1935.

Rehearing Denied May 27, 1935.

W. C. Linden, Sr., of San Antonio, Tex., Henry Zweifel and Mack Taylor, both of Fort Worth, Tex., and J. Forrest McCutcheon, of Oklahoma City, Okl., for appellant.

A. W. W. Woodcock, Sp. Asst. to Atty. Gen., and Clyde O. Eastus, U. S. Atty., of Fort Worth, Tex.

Before BRYAN, FOSTER, and WALKER, Circuit Judges.

FOSTER, Circuit Judge.

Vivian Wycliff Buie appeals from a judgment, entered on a verdict of guilty, returned on an indictment which charged, in six counts, that, together with Edwin P. Knotts and Cary M. Buie, he had devised a scheme to defraud divers persons, by inducing them to invest in certain oil and gas properties, by means of false and fraudulent representations, and had mailed and caused to be mailed various letters in execution of the scheme, in violation of section 338, title 18 U. S. C. (18 USCA § 338). The seventh count charged a conspiracy to commit the substantive offense, but he was not tried on that count. Knotts and Cary M. Buie were not charged as defendants.

Error is assigned to the overruling of a plea in bar; to the remarks of the court when overruling the plea in bar; and to the denial of a motion to direct a verdict for defendant.

As to the plea in bar, the following appears: An indictment had been previously returned charging appellant, with Edwin P. Knotts, Cary M. Buie, H. G. Marshall, Walt Keehan, and C. L. Nixon, with substantially the same offense charged in this case. A nolle prosse was entered in that case as to appellant, Marshall, and Keehan, while Knotts, Cary M. Buie, and Nixon entered pleas of guilty. The plea in bar alleged that appellant had entered into an agreement through his counsel, Mr. Zweifel and Mr. Taylor, with Mr. Woodcock, representing the government, to the effect that, if pleas of guilty were entered by Knotts, Cary M. Buie, and Nixon, he would dismiss the indictment and terminate the prosecution as to the other defendants, including appellant.

The court heard the evidence of the three attorneys named on presentation of the plea. Mr. Woodcock denied any agreement, and stated that he dismissed the other indictment because the evidence was not available to convict appellant, and not because he expected counsel to secure pleas of guilty from other defendants. The evidence of Mr. Zweifel and Mr. Taylor is to the effect that they understood that the indictment against plaintiff would be dismissed and the prosecution terminated if the other three defendants entered pleas of guilty. On this conflicting evidence it was for the District Judge to say whether the agreement was proven. But we deem that immaterial. It is elementary that an indictment may be dismissed and the defendant reindicted for the same offense, if he had not been put in jeopardy. Appellant cites a number of cases to the effect that the United States is bound by an agreement entered into by her counsel in a civil case; other cases ...