Cohen v. United States

• Decision Date: 04 May 1914
• Docket Number: 2339.
• Citation: 214 F. 23
• Parties: COHEN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

214 F. 23

COHEN v. UNITED STATES.

No. 2339.

United States Court of Appeals, Ninth Circuit.

May 4, 1914

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Mannix & Sullivan, Beach, Simon & Nelson, and R. E. Moody, all of Portland, Or., for plaintiff in error.

Clarence L. Reames, U.S. Atty., and Robert R. Rankin, Asst. U.S Atty., both of Portland, Or.

Before GILBERT and ROSS, Circuit Judges, and VAN FLEET, District Judge.

GILBERT Circuit Judge (after stating the facts as above).

It is assigned as error that the court overruled the demurrer to the indictment, and it is contended that the indictment is fatally defective in that the words 'trial' and 'issue' were used in referring to the hearing before the United States commissioner, in which the alleged perjured testimony was given, for the reason that a United States commissioner is without jurisdiction to try any issue between the United States and the person charged with crime. We find no merit in the contention. The indictment sufficiently shows what the proceeding was. The plaintiff in error was in no way prejudiced by the fact that the indictment against him described the proceeding before the United States commissioner as the trial of an issue. He was well aware of the nature of the proceeding, and had advised the witness Esther Wood as to the testimony she should give at the examination. In a sense there are 'issues' to be tried on such a preliminary examination, the issues whether a crime has been committed, and whether there is reasonable ground to believe that the defendant committed it, and these issues are tried for the purpose of deciding whether the defendant shall be held to answer for the crime charged. The plaintiff in error cites the case of State v. Furlong, 26 Me. 69, in which, in an indictment for perjury, it was alleged that a certain person accused of crime had been put upon trial before a justice of the peace, and that the justice of the peace had proceeded to hear and determine the matter, that the defendant was a witness on that trial and testified falsely, 'to cause the accused to be convicted of the offense charged. ' In that case the court held that it appeared from the indictment that the justice of the peace had assumed jurisdiction to try and pass finally upon the guilt or innocence of the accused, and thus had exercised a jurisdiction with which he was not vested. But it does not appear from the indictment in the case at bar that the commissioner attempted to exercise jurisdiction to determine the guilt or innocence of Gronich, and it does distinctly appear that the proceeding was a preliminary examination had, not upon an indictment or an information, but upon a 'complaint' as provided in Revised Statutes, Sec. 1014 (U.S. Comp. St. 1901, p. 716)), as amended by the Act of August 18, 1894, c. 301, 28 Stat. 416, with a view to holding Gronich to answer for the crime charged.

It is contended that it was error to deny the motion of the plaintiff in error for a directed verdict in his favor on the ground that there was no evidence to sustain a verdict against him, that Esther Wood had not been arrested at the time when the defendant is charged with having committed the crime set forth in the indictment, that there was no evidence that she knew she would be arrested, and that the crime of subornation of perjury cannot be committed unless the person charged therewith had in mind some particular tribunal or proceeding before which the perjury should be committed. But there was evidence that, at the time when the plaintiff in error advised Esther Wood concerning her testimony, he was aware of the arrest of Gronich, that he knew that Esther Wood was the wife of Gronich, and that all of his advice to her as to her testimony had reference to the testimony that she was to give on the examination of Gronich before the United States commissioner, that when she asked the plaintiff in error if he did not think it best for her to leave town so that the officers could not get her, he said no, that she might as well go down and give herself up, that they were bound to get her. In addition to this, when she that the plaintiff in error repeated his advice to Esther Wood during the investigation before the commissioner, and that, when she told him that she had followed his instructions, he approved her conduct in so doing. There was other evidence to sustain the verdict. In considering the question whether there has been error in refusing a directed verdict for the defendant on a criminal trial, this court can inquire only whether there was any evidence to sustain the verdict. Hedderly v. United States, 193 F. 561, 114 C.C.A. 227; Boren v. United States, 144 F. 801, 75 C.C.A. 531.

We find no merit in the contention that it was error to permit the introduction in evidence of the complaint against Gronich which had been filed in the preliminary hearing before the commissioner. It was properly admitted to prove one of the steps in the proceedings in which the alleged false testimony was suborned to be given, and to sustain the allegations of the indictment. But if it was immaterial to the issue as against the plaintiff in error, as he now contends, its admission could not possibly have prejudiced him on the trial of the case in the court below. The contention that the testimony of Esther Wood tending to show the commission of the crime, and her testimony in regard to post cards exhibited to her at the hearing before the commissioner, were inadmissible, is so plainly without merit as to require no discussion.

It is assigned as error that the court below admitted the testimony of Esther Wood to the effect that she had sworn falsely at the preliminary hearing before the commissioner, for the reason that on that hearing she was incompetent to be a witness against Gronich, to whom she had been married in December, 1910, and whose wife she still was. It does not appear that any objection whatever was made to her testimony in the court below, nor does it appear that, when she testified at the preliminary hearing, she did so against her consent, or without the consent of Gronich. Error cannot be predicated on the admission of her testimony in the court below as to what she had testified at the preliminary hearing, unless, when testifying at that hearing she was, by virtue of the marital relation alone, under such disability that her testimony could not lawfully be received at that hearing. The...