Cook v. United States
| Decision Date | 11 March 1925 |
| Docket Number | No. 4382.,4382. |
| Citation | 4 F.2d 517 |
| Parties | COOK v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joseph W. Bailey, of Dallas, Tex., and Herbert C. Wade, of Fort Worth, Tex. (Joseph F. Greathouse and John E. McGinness, both of Fort Worth, Tex., on the brief), for plaintiff in error.
Henry Zweifel, U. S. Atty., of Fort Worth, Tex., and John S. Pratt and Sylvester R. Rush, Sp. Asst. Attys. Gen., for the United States.
Before WALKER and BRYAN, Circuit Judges, and DAWKINS, District Judge.
The plaintiff in error, Frederick A. Cook, was convicted under an indictment charging use of the mails for the purpose of executing an alleged scheme to defraud. What is relied on for a reversal is the action of the court in overruling a motion to quash the indictment because of alleged illegalities in the organization and composition of the grand jury which found it, and statements made by the court in the presence of the jury in reference to conduct of counsel who represented Cook in the trial.
The term of court during which the indictment was found and returned was convened on March 12, 1923, and the grand jury was impaneled on that day. On April 3, 1923, Cook made bond before a United States commissioner for his appearance before that court instanter, and from time to time thereafter to which the case may be continued, "to answer the charge of having, on or about the 25th day of October, A. D. 1922, within said district, in violation of section 215 Criminal Code of the United States, unlawfully, feloniously, and knowingly devised a scheme and artifice to defraud by the use of the United States mail." The grand jury returned the indictment on April 20, 1923. The motion of Cook to quash the indictment on account of asserted irregularities in increasing, on March 12, 1923, the number of grand jurors, by ordering the summoning of two additional competent and qualified persons to serve as grand jurors, was filed on May 14, 1923. From the time of his giving bond as above stated Cook must have been aware that the charge against him would be submitted to the grand jury then in session. For aught that was made to appear he had abundant opportunity to object to the competency of the grand jury before the indictment was found, and certainly much sooner than he did so after the indictment was returned. No explanation or reason for the delay was disclosed. Such an objection to a grand jury cannot properly prevail, unless it is made promptly after an opportunity to make it is presented. Agnew v. United States, 165...
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United States v. West Coast News Company, Crim. No. 6615.
...to object before the bill was found, and certainly they cannot plead lack of knowledge of threatened prosecution. In Cook v. United States, 4 F.2d 517 (CCA, 5th 1925), Circuit Judge Walker said at Page 518: "For ought that was made to appear he had abundant opportunity to object to the comp......
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United States v. NEW ORLEANS CHAPT., ASSOC. GEN. CON. OF AM.
...if he lies by until a bill is found, the exception may be too late * * *" 165 U.S. at 44, 17 S.Ct. at 238. See also Cook v. United States, 4 F.2d 517, 518 (5 Cir. 1925); and Michel v. Louisiana, 350 U.S. 91, 100, 76 S.Ct. 158, 100 L.Ed. 83 The refusal to dismiss the charge in Agnew was prem......