Flack v. United States
| Citation | 272 F. 680 |
| Decision Date | 15 April 1921 |
| Docket Number | 5483. |
| Parties | FLACK et al. v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
J. C Denton, of Tulsa, Okl. (Frank Lee, of Muskogee, Okl., on the brief), for plaintiffs in error.
Archibald Bonds, U.S. Atty., of Muskogee, Okl.
Before HOOK and STONE, Circuit Judges, and JOHNSON, District Judge.
Flack and Herron were convicted of introducing intoxicating liquor from outside of the state of Oklahoma into that part of the state that was formerly Indian Territory (28 Stat. 693). The indictments, one against each of the accused, consolidated for trial, charged that the offenses were committed in Washington county, in the Eastern district of Oklahoma. The bill of exceptions does not contain the evidence, but recites that it 'proved conclusively' that the liquors were introduced into Nowata county, instead of Washington county and that the accused moved for a directed verdict of acquittal on that ground. The motion was denied, and the ruling presents the only question on this writ of error. Other questions are argued, but the bill of exceptions is insufficient to exhibit them.
Washington and Nowata counties adjoin each other, and are in northeastern Oklahoma, next to Kansas. Both are in that part of Oklahoma that was formerly Indian Territory, and are in the Eastern judicial district, where the trial was had. Under the statute the particular county in that part of the state is not an element of the offense defined. The introduction of liquors from outside the state into either county was equally unlawful. The indictments would have been good against general demurrer had the name of the county been omitted. The variance that occurred did not affect the jurisdiction of the court; it did not pertain to the venue. It is conceivable that such a variance could have caused surprise at the trial and could therefore possibly have affected the presentation of the defense, but whether it did or not would depend upon circumstances. The bill of exceptions does not show how it came about, what was said or done about it while the evidence was being adduced, or what effect or influence if any, it had on the presentation of the defense. It does not appear that the accused were misled, or that any contention to that effect was made. Prejudice from such a variance does not necessarily arise as an inference of law. The accused were not placed in danger of a second pr...
To continue reading
Request your trial
-
Myers v. United States
...citing cases from a number of states; Ledbetter v. United States, 170 U. S. 606, 18 S. Ct. 774, 42 L. Ed. 1162; Flack et al. v. United States (C. C. A. 8th Circuit) 272 F. 680; Heitler v. United States (C. C. A.) 280 F. 703; Adamson v. United States (C. C. A.) 296 F. 110; Dukich v. United S......
-
Cornett v. United States
...Ct. 889, 46 L. Ed. 1137; United States v. Howard (D. C.) 132 F. 325, 335; Harrington v. United States, 267 F. 97 (this court); Flack v. United States, 272 F. 680 (this court); Remus v. United States (C. C. A.) 291 F. 501; Jones v. United States (C. C. A.) 296 F. 632; Feinberg v. United Stat......
-
Norris v. United States, 11398.
...170 U.S. 606, 18 S.Ct. 774, 42 L.Ed. 1162. 3 28 Fed.Cas. page 706. 4 United States v. Smith, Fed. Case No. 16322; Flack et al. v. United States, 8 Cir., 272 F. 680; Heitler v. United States, 7 Cir., 280 F. 703; McDonough v. United States, 9 Cir., 299 F. 30; Day v. United States, 8 Cir., 28 ......
-
Lett v. United States
...774, 42 L. Ed. 1162; New York Central R. R. Co. v. United States, 212 U. S. 481, 497, 29 S. Ct. 304, 53 L. Ed. 613; Flack et al. v. United States (C. C. A. 8) 272 F. 680. The government could not properly be restricted to a specific spot on the road or a specific hour of the day, as demande......