Girson v. United States

• Decision Date: 15 March 1937
• Docket Number: No. 8207.,8207.
• Citation: 88 F.2d 358
• Parties: GIRSON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

88 F.2d 358 (1937)

GIRSON et al. v. UNITED STATES.^*

No. 8207.

Circuit Court of Appeals, Ninth Circuit.

February 15, 1937.

Rehearing Denied March 15, 1937.

Thomas N. Marlowe and Fred W. Schilling, both of Missoula, Mont., for appellant Girson.

Walter L. Pope and Russell E. Smith, both of Missoula, Mont., for appellant Rivin.

John B. Tansil, U. S. Atty., and R. Lewis Brown, Asst. U. S. Atty., both of Butte, Mont.

Before GARRECHT and HANEY, Circuit Judges, and NETERER, District Judge.

HANEY, Circuit Judge.

Defendants were jointly indicted upon four counts as follows: Count 1 charged defendant with receiving stolen public property; count 2 charged defendants with concealing stolen public property; count 3 charged that the defendants aided in concealing stolen public property; count 4 charged that defendants conspired to commit an offense against the United States.

The first three counts charged a violation of 18 U.S.C.A. § 101, and the fourth count was based upon 18 U.S.C. A. § 88. The trial jury returned a verdict of guilty as to count 1, and not guilty on the remaining counts with respect to defendant Girson, and found defendant Rivin guilty on count 2 and not guilty on the remaining counts. From such convictions both defendants appeal. Defendants filed separate but identical assignments of error, the first ten of which question the sufficiency of the evidence to sustain conviction.

It appears from the face of the record that at the close of the government's case both defendants moved for a directed verdict which was denied and that each defendant reserved an exception to such ruling; that thereafter defendants offered evidence in their respective defenses, rested, and thereupon renewed their motions for a directed verdict, which motions were again denied.

Thereafter, upon request of defendants' counsel, the trial was reopened and each of defendants offered and had introduced additional evidence which was received; the record then reciting "and thereupon the testimony was closed," but does not indicate that the motions for a directed verdict were renewed.

Thus the record does not disclose that the motions were made at the close of all of the testimony. Under the authority of Mitchell v. United States (C.C.A.) 23 F. (2d) 260, we must hold that no question is presented for review by the first ten assignments. We are not unmindful that we may notice "plain error" in the record, even though unassigned, but we do not recognize the error suggested as such plain error. We see no reason to apply the rule laid down in Wiborg v. United States, 163 U.S. 632, 16 S.Ct. 1127, 1197, 41 L.Ed. 289.

Capt. Haines testified on behalf of the government that he was stationed at Fort Missoula, was assistant post quarter-master, and as such was responsible solely for all government property there. Appellants, under one point, contend that the court erred in permitting the witness Haines to testify as to alleged shortages of clothing supplies and blankets at Fort Missoula. Appellants argue that this point is raised by assignments 11, 12, 13, and 16. We cannot consider assignments 11 and 16, because they do not comply with rule 11 of this court requiring the quotation of "the full substance of the evidence admitted or rejected." This rule as interpreted by Goldstein v. United States (C.C.A.9) 73 F.(2d) 804, 806, and Mullaney v. United States (C.C.A.9) 82 F.(2d) 638, 640, requires that the objection, grounds therefor, the ruling of the court and the exception thereto must be stated in the assignment of error.

The witness testified on direct examination that all government property at Fort Missoula was under his supervision and care, checked into him and checked out by him. The witness was asked if, during 1933, when he was in charge of the supply depot, there was property of the United States which disappeared from the fort and which he found himself "to be short of." Appellants objected to the question on the ground that such testimony would not be "related to the offense charged," and on the further ground that "no foundation has been laid, this witness not being qualified to answer of his own knowledge." The objection was overruled, to which ruling appellants excepted. After the witness answered, he was asked if, based on his own knowledge, the shortage occurred in one month or in other months. The witness answered "No sir, from the inventories taken each month we were short a great deal of property, * * *" and at this point an objection was interposed that the answer disclosed that the information was based on inventories; that appellants objected on the ground that no foundation had been laid; and that the evidence was not "the best evidence." The objection was overruled, and appellants excepted.

Appellants argue that the evidence was inadmissible (1) because no foundation was laid to show personal knowledge by the witness, and (2) because it was not the best evidence. Neither of these contentions is tenable. A foundation had been laid by the previous testimony of the witness, that his duty was the care and supervision of such property, and that such property was checked into him and checked out by him. The second ground urged is based on the assumption that when the witness said "from the inventories taken each month" he was speaking of a written inventory. An inventory is a count. The results may be recorded, but there is nothing in the testimony of the witness prior to his answer, which indicated that he had, was or would rely on a written inventory. The objection on the ground urged was, at that time, improperly taken.

A further point is made that the court erred in unduly limiting appellants in cross-examination of witness Haines. It is said that assignments 14, 15, 17, 18, 20, and 21 raise this point. For the same reason why we cannot consider assignments 11 and 16, we are unable to consider assignments 14, 15, 17, and 18. On cross-examination, the witness first testified that, when goods were received from a foreign depot, they were checked in by himself and his assistants; that, when he was there as property officer, he "personally inspected this merchandise that was received, item by item." The witness was then asked: "Now my understanding from you is that while you signed for the articles, you didn't personally count each article as it came in?" Error is assigned to the trial court's action in sustaining an objection to that question. The court also sustained an objection to the following question: "And I will ask you if it isn't a fact that the actual work of checking those, that is to say counting the articles, was done by your assistants and not always by yourself?" Error is assigned to the ruling so made.

Appellants complain that they were deprived of their right of cross-examination. The rule concerning cross-examination is stated in Alford v. United States, 282 U. S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624, as follows: "The extent of cross-examination with respect to an appropriate subject of inquiry is within...