Edwards v. United States

• Decision Date: 23 July 1925
• Docket Number: No. 6791,6792.,6791
• Citation: 7 F.2d 357
• Parties: EDWARDS v. UNITED STATES (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

7 F.2d 357 (1925)

EDWARDS v. UNITED STATES (two cases).

Nos. 6791, 6792.

Circuit Court of Appeals, Eighth Circuit.

July 23, 1925.

J. Q. A. Harrod, of Oklahoma City, Okl., for plaintiffs in error.

W. A. Maurer, U. S. Atty., and Roy St. Lewis, Asst. U. S. Atty., both of Oklahoma City, Okl.

Before SANBORN and KENYON, Circuit Judges, and SCOTT, District Judge.

KENYON, Circuit Judge.

Plaintiffs in error (herein designated as defendants) were tried in the District Court of the United States for the Western District of Oklahoma upon separate informations, charging each one of them with failure to present himself for registration in Grant county, Okl., on June 5, 1917, under the provisions of the Selective Draft Act (sections 2044a-2044k, Comp. St. 1918, Comp. St. Ann. Supp. 1919), and alleging that their permanent home and actual place of legal residence at the time for registration was in that county, and that they were not temporarily absent therefrom; the cases being consolidated for the purpose of trial.

Both defendants were convicted and sentenced to six months in jail. Two of the eight assignments of error, the fifth and eighth, are argued. The condition of this record as to presentation of the errors alleged challenges our attention. None of the assignments of error raise questions based on rulings of the trial court duly excepted to. This court has repeatedly held that such assignments are unavailing. Short v. United States, 221 F. 248, 137 C. C. A. 104; Hoskins v. United States (C. C. A.) 4 F.(2d) 804; Feinberg v. United States (C. C. A.) 2 F.(2d) 955.

The eighth assignment is as follows: "For the reason that the court committed error of law in the trial of said cause." This assignment is entirely too general to cover the points attempted to be argued under it, and does not conform to the rules of this court. Baggs v. Martin et al., 108 F. 33, 47 C. C. A. 175; Harrington et al. v. United States (C. C. A.) 267 F. 97; McCabe & Steen Co. v. Wilson, 209 U. S. 275, 28 S. Ct. 558, 52 L. Ed. 788. Passing that question, however, we may say that counsel under this assignment argues: First, that the demurrer filed at the close of the government's evidence should have been sustained, and that it was error in the court not so to do; second, that certain statements in the instructions of the court to the jury were erroneous. The demurrer was based on lack of evidence to prove that defendants were residents of their respective townships on the dates charged in the information; in other words, that the evidence was not sufficient to sustain the charge.

If assignment of error No. 8 was specific enough to cover this question, nevertheless it is the well-established rule that a motion to direct a verdict on the ground of lack of evidence at the close of the government's, or plaintiff's, case (and that is what this demurrer amounted to) is waived by defendants proceeding to introduce evidence. Collins v. United States, 219 F. 670, 135 C. C. A. 342; Short v. United States, 221 F. 248, 137 C. C. A. 104; Steffen v. United States (C. C. A.) 293 F. 30; McCabe & Steen Construction Co. v. Wilson, 209 U. S. 275, 28 S. Ct. 558, 52 L. Ed. 788; Accident Ins. Co. v. Crandal, 120 U. S. 527, 7 S. Ct. 685, 30 L. Ed. 740.

Counsel also seek in the same assignment of error to present alleged erroneous instructions. There are some portions of the instructions not entirely clear, and, had the court's attention been called thereto, could have been easily clarified. At the close of the instructions the court asked if there were any exceptions, to which counsel for defendants replied, "No, sir." It is evident that, having made no objections to the instructions of the court or excepted to any part thereof, defendants are not in position here to urge alleged errors therein. Savage v. United States, 213 F. 31, 130 C. C. A. 1; Hickory v. United States, 151 U. S. 303, 14 S. Ct. 334, 38 L. Ed. 170; Stewart v. Wyoming Ranche Co., 128 U. S. 383, 9 S. Ct. 101, 32 L. Ed. 439.

Assignment of error No. 5 is that the verdict of the jury, upon which the judgment of the court was based, was contrary to the evidence. As to this we find the record in substantially the same condition as to the instructions. The question of sufficiency of the evidence was raised at the close of the government's case. It was waived by the defendants proceeding with their evidence, and no motion was made at the close of all the testimony for an instructed verdict on any ground. Counsel for defendants impliedly consented that the questions involved were for the jury. This court, as well as other courts, has many times held that the method to require a review of the sufficiency of the evidence by an appellate court is to move at the conclusion of all the evidence for a directed verdict on that ground.

In the late case of Feinberg v. United States (C. C. A.) 2 F.(2d) 955, 956, Judge Munger, speaking for the court, says: "It is now the established rule, notwithstanding the provisions of section 269 of the Judicial Code, that the appellate court will not decide the question of the sufficiency of the evidence in the absence of a request for an instructed verdict, unless it is satisfied that there has been a miscarriage of justice."

Defendants do not even raise in the motion for new trial the question of the sufficiency of the evidence. That would have been too late, as far as this court is concerned; but the trial court might then have had an opportunity to pass on the question. There being no challenge to the sufficiency of the evidence in any way at the conclusion of the case, the long-settled practice of this court is that the question is not here for review. Bonner v. United States (C. C. A.) 275 F. 614; Trope v. United States (C. C. A.) 276 F. 348; Gillette v. United States, 236 F. 215, 149 C. C. A. 405; Prosser et al. v. United States (C. C. A.) 265 F. 252. The condition of the record in this court, barren of questions properly preserved for review, as we have pointed out, precludes any right on the part of defendants to insist that the court shall review the alleged errors in the case.

Defendants are not aided by amended section 269 of the Judicial Code (Comp. St. Ann. Supp. 1919, § 1246), for that section does not require the appellate court to pass on questions which have not been properly preserved in the trial court. Short v. United States, 221 F. 248, 137 C. C. A. 104; Robilio et al. v. United States (C. C. A.) 291 F. 975; Feinberg v. United States (C. C. A.) 2 F.(2d) 955.

There exists in this court, however, especially in cases where life and liberty are involved, an inherent power to consider the sufficiency of the evidence to sustain a verdict of guilty, even where the question is not properly presented to the trial court, if this court is satisfied there has been a miscarriage of justice. If the evidence is convincing that defendants are guilty, then there is no reason ordinarily for the court to exercise such power. This court has in a number of instances, where life and liberty of an individual were at stake, considered the sufficiency of the evidence to warrant conviction of the crime charged, although the question was not properly raised in the trial court; Gillette v. United States, 236 F. 215, 149 C. C. A. 405, being a case in point.

In Sykes v. United States, 204 F. 909, 913-914, 123 C. C. A. 205, 209 (citing many cases), this court said: "To escape from the effect of this conclusion, counsel challenge our attention to the fact that no request for a peremptory instruction to return a verdict for Sykes was made at the trial, and invoke the conceded rule that the court may not review the existence of evidence to sustain a verdict, in the absence of a request after the close of the evidence for a peremptory instruction. Rimmerman v. United States, 186 F. 307, 311, 108 C. C. A. 385. But there is an exception to this general rule, which has been made to prevent just such gross injustice as would result from the punishment of the defendant Sykes upon the evidence which has been recited. It is that in criminal cases, where the life, or, as in this case, the liberty, of the defendant is at stake, the courts of the United States, in the exercise of a sound discretion, may notice such a grave error as his conviction without evidence to support it, although the question is presents was not properly raised in the trial court by request, objection, exception, or assignment of error."

In Robins v. United States (C. C. A.) 262 F. 126, 127, the court took the ground that, where the sufficiency of the evidence was not questioned in the trial court, it could not be urged here, "unless in our discretion we decide so to do." See also Humes v. United States, 182 F. 485, 105 C. C. A. 158; Savage v. United States, 213 F. 31, 130 C. C. A. 1; Feinberg v. United States (C. C. A.) 2 F.(2d) 955. In other jurisdictions, see Lockhart v. United States (C. C. A.) 264 F. 14; Quarles v. United States (C. C. A.) 274 F. 203; De Jianne v. United States (C. C. A.) 282 F. 737; Thompson v. United States (C. C. A.) 283 F. 895; Bilboa et al. v. United States (C. C. A.) 287 F. 125; Robilio et al. v. United States (C. C. A.) 291 F. 975; Horning v. District of Columbia, 254 U. S. 135, 41 S. Ct. 53, 65 L. Ed. 185.

The statute for the violation of which these defendants were convicted was a war measure. The informations were not found until two years, and the case not tried until six years, after the war had terminated.

Regardless of the condition of the record, precluding any right of defendants to demand a review of alleged errors, and independent of any provision of amended section 269 of the Judicial Code, we have, in review of the somewhat extraordinary circumstances of these cases, exercised our inherent power to review the entire record, to determine whether or not there is such lack of evidence as to make the conviction of defendants a miscarriage of justice.

If the evidence, taken...