Daly v. United States

• Decision Date: 09 May 1929
• Docket Number: No. 4077.,4077.
• Citation: 33 F.2d 443
• Parties: DALY v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

33 F.2d 443 (1929)

DALY v. UNITED STATES.

No. 4077.

Circuit Court of Appeals, Seventh Circuit.

May 9, 1929.

Morris K. Levinson, of Chicago, Ill., for appellant.

George E. Q. Johnson and Joseph A. Struett, both of Chicago, Ill., for the United States.

Before ALSCHULER and EVANS, Circuit Judges, and LUSE, District Judge.

LUSE, District Judge.

This is an appeal from a judgment of conviction on a charge of maintaining a nuisance, in violation of the National Prohibition Act (27 USCA), entered in the District Court of the United States for the Northern District of Illinois, Eastern Division.

The first, second, and seventh assignments of error may be treated together, as all involve the question of appellant's sanity at the time of the alleged offense. The first two assignments are based on the proposition that the trial court should have held the appellant insane as a matter of law, the seventh assignment being based upon the alleged error in the instructions of the trial court with respect to appellant's sanity. The information charged the commission of the alleged offense between April 1 and May 21, 1928. The evidence disclosed that on September 20, 1923, appellant was adjudged insane and was committed to the Chicago State Hospital at Dunning, whence he was discharged on March 22, 1924. However, he was not formally adjudged "restored to the rights and privileges of a sane person" by the county court of Cook county until June 13, 1928, after the time of the alleged offense. The evidence further disclosed, however, that shortly after his discharge from the hospital in March, 1924, appellant went into business and attended to it in the usual way for nearly four years; that on January 6, 1928, he had given a bill of sale of the premises which he was charged with having maintained as a nuisance, upon which bill of sale he relied in part as a defense herein; and that in the spring of 1928 he had testified as a witness in another case in the trial court and before the same judge who heard the instant case. Appellant was asked whether he was not sane when he testified in the former case, and in response said:

"I did not know; I was not declared sane until I went to get declared sane a few weeks ago. * * * They did not say I was insane; they told me I was insane officially. I did not know that until a few weeks ago, and I got it fixed up."

It is a proper inference from this and other evidence in the case that the delay in securing an adjudication in the county court of Cook county, restoring appellant to the status of a sane person, was due to oversight on the part of appellant, and the trial court was undoubtedly correct in refusing to instruct the jury that appellant was insane as a matter of law at the time of the commission of the offense here in question. The instruction given by the court on the question of appellant's mental condition is deemed correct as far as it goes. In substance, the jury was told to consider all of the evidence relating to appellant's mental condition, and, if it believed him to be sane at the time of the alleged offense, it was no defense that formal adjudication of sanity postdated the offense date. If further elucidation of the law was desired by appellant's counsel, it should have been requested. There is of course a...