Cook v. United States

• Decision Date: 07 March 1927
• Docket Number: No. 7495.,7495.
• Citation: 18 F.2d 50
• Parties: COOK v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

18 F.2d 50 (1927)

COOK v. UNITED STATES.

No. 7495.

Circuit Court of Appeals, Eighth Circuit.

March 7, 1927.

John T. Harley, of Tulsa, Okl., for plaintiff in error.

John M. Goldesberry, U. S. Atty., of Tulsa, Okl. (W. B. Blair, Asst. U. S. Atty., of Tulsa, Okl., on the brief), for the United States.

Before LEWIS and KENYON, Circuit Judges, and TRIEBER, District Judge.

KENYON, Circuit Judge.

This is a writ of error from a judgment of the United States District Court for the Northern District of Oklahoma. Plaintiff in error and one Jasper Cox were indicted on the charge of unlawfully conspiring together and with one Charlie Jimerson to willfully, wrongfully, corruptly, and feloniously manufacture, transport, and sell intoxicating liquor. Both defendants in the trial court were convicted, but only Cook brings writ of error. It is alleged that Cook, a justice of the peace, and Cox, a constable, in one of the townships in Creek county, state of Oklahoma, for a money consideration, agreed to furnish protection to Jimerson in the manufacture, sale, and transportation of intoxicating liquors.

Five specifications of error are urged. One relates to the refusal of the court to instruct the jury on the theory that witness C. B. Aubrey was an accomplice, the request being that his testimony should be viewed with the greatest caution. A complete answer to this is that there is no evidence that shows or tends to show that Aubrey was an accomplice.

Another error is claimed in the instruction of the court relative to discrepancies in the testimony as to which witness gave a $10 or $5 bill to defendant Cook. The court told the jury this was of minor importance, "except in so far as its effect in determining the credibility of the witnesses and for the purpose of determining for what purpose the money was paid." We see no cause for complaint as to this. Some other errors urged are of a rather trivial nature. The only one of serious import is in relation to a certain instruction of the court, which in part is as follows:

"It is my opinion from this testimony that these darkies told the truth about this matter. I observed this witness Nelson upon the stand, his demeanor and his manner, the partner of Mr. Cook, as he says, in the garage and gasoline and oil business. He didn't appear to me to be a frank witness; his evidence didn't appeal to me as being truthful; it didn't appeal to me that he really knew whether he could recognize his own writing or not. I have examined carefully these exhibits, but that is only an opinion of mine. You may have entirely a different one. I think they were all made out at the same time, and at the same place; that is my candid opinion about it. I believe these negroes went down there and paid this money for the purpose of which they stated, in order that they might dispense liquor out at the parties that they had on various Saturday nights when they had them. Now, that is the way the evidence strikes me, gentlemen; but my opinion is not controlling or in any way binding upon you gentlemen. I am of the opinion that this conspiracy existed as charged in this indictment from this evidence introduced; but that is the deduction that I draw from the evidence which is in no way controlling upon you gentlemen."

The question of the veracity of these witnesses was vital in the case. If their evidence as to payment of money to Cook was not believed by the jury, unquestionably there would have been a verdict for defendants.

This and other courts in numerous cases have had presented to them the question of alleged error in instructions of a trial court, where it was claimed on the one side that the language used was merely an expression of opinion on the evidence, and on the other, that the court assumed the position of an advocate and attempted to argue the case. No hard and fast rule can be laid down as to just how far a court may go. It is settled by practically all the decisions that the trial court may comment upon the evidence and express his opinion upon the facts, provided he is careful to see that the jury understands that their province of dealing with the fact questions involved is not invaded.

In Starr v. United States, 153 U. S. 614, 624, 625, 626, 627 and 628, 14 S. Ct. 919, 923 (38 L. Ed. 841) the court said: "It is true that in the federal courts the rule that obtains is similar to that in the English courts, and the presiding judge may, if in his discretion he think proper, sum up the facts to the jury; and if no rule of law is incorrectly stated, and the matters of facts are ultimately submitted to the determination of the jury, it has been held that an expression of opinion upon the facts is not reviewable on error. * * * It is obvious that under any system of jury trials the influence of the trial judge on the jury is...