Goode v. United States

• Decision Date: 18 May 1932
• Docket Number: No. 9319.,9319.
• Citation: 58 F.2d 105
• Parties: GOODE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

58 F.2d 105 (1932)

GOODE et al. v. UNITED STATES.

No. 9319.

Circuit Court of Appeals, Eighth Circuit.

April 16, 1932.

Rehearing Denied May 18, 1932.

Fred W. Coon and Harold E. Marshall, both of Kansas City, Mo., for appellants.

William L. Vandeventer, U. S. Atty., George H. Hubbell and S. M. Carmean, Asst. U. S. Attys., all of Kansas City, Mo.

Before STONE, KENYON, and GARDNER, Circuit Judges.

GARDNER, Circuit Judge.

In this case appellants were jointly indicted, with certain other parties not tried with them, in an indictment of one count, charging a conspiracy to commit offenses against the National Prohibition Act, it being charged that they, with others, did sell and possess certain intoxicating liquor, to wit, whisky fit for and intended for use as a beverage, at 6915½ Independence road, Jackson county, Mo.; that, pursuant to said unlawful conspiracy and agreement, they thereafter committed certain overt acts consisting of eight sales of whisky, enumerated as having been made on eight different dates at the place described. This indictment was filed June 3, 1930. On November 6, 1930, the Assistant United States District Attorney filed an information against the same persons named in the indictment, charging them with the maintenance of a common nuisance at the place described in the indictment, it being charged that at the place mentioned intoxicating liquor intended and fit for beverage purposes, to wit, whisky, was sold, possessed, kept, and bartered, in violation of the National Prohibition Act. The appellants will be referred to as defendants.

On November 6, 1930, defendant Goode was arraigned on the indictment and entered a plea of not guilty. At that time his attorney was advised by counsel for the government that, in addition to the indictment, the government would file an information charging defendants with maintaining a common nuisance, and this information was accordingly filed November 6, 1930. At that time, by an order made in open court, the cases were consolidated. On November 12, 1930, defendant Ham entered his plea of not guilty, and on November 13, 1930, the consolidated cases were brought on for trial; both of the defendants appearing by the same counsel. Defendants moved for a severance of the causes, which motion being denied, they made an oral motion for a continuance, which was also denied. The causes then proceeded to trial. At the close of all the testimony, defendants moved for a directed verdict on each of the charges, which motions the court overruled, and verdicts of guilty as to both defendants on both charges were returned by the jury.

From the sentence and judgment entered on these verdicts, defendants have appealed. As grounds for reversal they urge: (1) That the court erred in denying their motion for continuance; (2) that the court erred in overruling their objections to the admission in evidence of Government's Exhibits 6, 7, 8, 9, and 10; and (3) that the court erred in denying their motion interposed at the close of all the testimony for a directed verdict of not guilty.

In support of their claim that they were entitled to a continuance of the cases, it is urged that, while the indictment was returned in June, 1930, defendant Goode was not arraigned thereon until November 6, 1930, and the information was not filed until November 6, 1930, and the cases were brought on for trial November 13, 1930. In this state of the record it is urged that, as to the charge contained in the information, they had not had sufficient time or opportunity for preparing their defense. First, it should be noted that no showing by affidavit or otherwise was made to the court to the effect that the defendants could not reasonably prepare for trial, nor was there any application made requesting time within which to prepare a showing in support of the application for a continuance. There was, therefore, nothing before the court on which its discretion might properly have been exercised. Applications for a continuance are addressed to the sound judicial discretion of the trial court, and that court's rulings upon such motions will not ordinarily be reversed, unless it clearly appears that the court abused its discretion, or that a manifest injustice has been done the defendant. Isaacs v. United States, 159 U. S. 487, 16 S. Ct. 51, 40 L. Ed. 229; Hardy v. United States, 186 U. S. 224, 22 S. Ct. 889, 46 L. Ed. 1137; Clapp v. United States (C. C. A.) 18 F.(2d) 906; Callahan v. United States (C. C. A.) 195 F. 924; Myers v. United States; (C. C. A.) 223 F. 919. The cases were not brought on for trial until November 13, and on November 6 counsel who appeared for both defendants was advised that this information would be filed. The charge contained in the information referred to the same place as that contained in the indictment, and the evidence supporting the conspiracy charge, with the overt acts specified in the indictment, was the same evidence relied upon as supporting the charge contained in the information. There was no abuse of discretion.

The premises described in the indictment and information constituted a two-story building owned by defendant George W. Goode and his wife. On the second floor of this building were some twelve rooms, a sleeping porch, and a bathroom. These rooms were divided into some three apartments; the bathroom being used in common by all tenants. Defendant Goode rented out the rooms on the second floor, excepting several rooms which he had reserved since January 1, 1930, for storage and other purposes. On the night of his arrest, Goode went into one of these rooms to conceal some money which he had on his person. In connection with this arrest, the premises were searched pursuant to a search warrant, and Government's Exhibits...