Cook v. United States
| Decision Date | 17 September 1926 |
| Docket Number | No. 7348.,7348. |
| Citation | 14 F.2d 833 |
| Parties | COOK v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John T. Harley, of Tulsa, Okl., for plaintiff in error.
John M. Goldesberry, U. S. Atty., of Tulsa, Okl. (W. L. Coffey, Asst. U. S. Atty., of Tulsa, Okl., on the brief), for the United States.
Before STONE and LEWIS, Circuit Judges, and SYMES, District Judge.
The plaintiff in error, William Cook, and one Jasper Cox, were indicted for conspiring together, and with one C. B. Aubrey, to violate the National Prohibition Act (Comp. St. § 10138¼ et seq.).
The indictment charged that the defendants Cox and Cook, being a justice of the peace and constable, respectively, in and for Creek county, Okl., agreed as such, on or about April 15, 1925, that Aubrey should and would be permitted to set up a still and sell and transport whisky, and would be protected by them from arrest or prosecution, in consideration of the payment by said Aubrey of $40 a month. The one overt act alleged was that Cox and Cook, pursuant to said arrangement, feloniously received from Aubrey $10 on or about the 8th day of June, 1925. From a judgment of conviction, Cook alone appeals.
At the time of the trial two indictments were pending against the same defendants, and the first specification of error argued is the action of the court, after the trial had begun, in ordering the numbers on the indictments changed, and thereby putting, as alleged, the defendants on trial for a separate offense. We see no merit in this objection. It was clearly understood at the time that Cook and Cox were on trial for conspiring with Aubrey, and the correction of a clerical error by transposing the numbers of the two cases did not affect any substantial rights of the defendants.
The next objection is to the admission of evidence of other transactions, or overt acts, not set out in the indictment. This seems to be a matter of discretion, and the testimony objected to comes within the rule that permits evidence of other and distinct offenses to be introduced, when they are so related to the main issue in respect to time and character as to aid in its solution. The latest authority on this is Lynch v. U. S. (C. C. A.) 12 F.(2d) 193, and cases cited. In Newman v. U. S. (C. C. A.) 289 F. 712, the court, after stating that considerable discretion is allowed the trial courts as to the manner and method of procedure before them, including the introduction of testimony, states that evidence may not be admitted of other alleged crimes not related to the offense under trial, except where intent is an essential ingredient, or the subject of inquiry is so related to the main offense as to throw material light thereon. See, also, Crowley v. U. S. (C. C. A.) 8 F. (2d) 118, Westfall v. U. S. (C. C. A.) 2 F. (2d) 973, Grayson v. U. S. (C. C. A.) 272 F. 553, Kolbrenner v. U. S. (C. C. A.) 11 F.(2d) 754. In Baker v. U. S. (C. C. A.) 276 F. 285, the court said:
"Proof of a conspiracy may, and generally does, consist of a multitude of facts and circumstances, regardless of whether, singly considered, they would constitute overt acts or not, and regardless of the time of their occurrence, provided it is shown that the conspiracy continued and was still afoot within the period of limitation."
The evidence objected to tended to show that the defendants, about the time in question, were selling protection or immunity from arrest to persons other than those charged in the indictment. On the entire record we are of the opinion that the verdict of the jury was justified, and that, with the exception hereafter noted, we are not warranted, under section 269, Judicial Code (Comp. St. § 1246), in reversing the judgment on any of the grounds urged. Lewis v. U. S. (C. C. A.) 11 F.(2d) 746. Counsel, in urging objections similar to those referred to should consider this wise and salutary provision of the Judicial Code. Errors of a minor nature cannot be considered. Kercheval v. U. S. (8th C. C. A., May 4, 1926) 12 F.(2d) 904.
Assignments of error Nos. 15 and 16 challenge certain comments made by the court upon the evidence in the instructions as being argumentative and nonjudicial in character. The question thus presented is not free from difficulty. The rule in this circuit has been very clearly stated in Rudd v. U. S., 173 F. 912, 97 C. C. A. 462, and in Lewis v. U. S., 8 F.(2d) 849. We have no intention of limiting the statement there made that:
"A judge should not be a mere automatic oracle of the law, but a living participant in the trial, and so far as the...
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