Graboyes v. United States

• Decision Date: 10 May 1918
• Docket Number: 2339,2340.
• Citation: 250 F. 793
• Parties: GRABOYES v. UNITED STATES. FISCHER v. SAME.
• Court: U.S. Court of Appeals — Third Circuit

250 F. 793

GRABOYES v. UNITED STATES.

FISCHER v. SAME.

Nos. 2339, 2340.

United States Court of Appeals, Third Circuit.

May 10, 1918

Harry D. Wescott, of Philadelphia, Pa., for plaintiff in error Graboyes.

William A. Gray, of Philadelphia, Pa., for plaintiff in error Fischer.

Robert J. Sterrett, of Philadelphia, Pa., for the United States.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

BUFFINGTON Circuit Judge.

In the court below Abraham Graboyes and Philip Fischer were separately tried, convicted, and sentenced on indictments charging conspiracy to commit an offense under the Bankruptcy Law, and also with a joint violation of R.S. Secs. 5480 5440, and sections 215 and 37, Act March 4, 1909, c. 321, 35 Stat.pt. 1, p. 1088 (Comp. St. 1916, Secs. 10385, 10201) relating to a fraudulent use of the mails. Thereupon they sued out separate writs of error, and, as the principal questions raised thereunder are the same in both, we dispose of the two cases in the present opinion. We may say the defendants were represented by competent counsel, the case was fully and patiently heard, and we are satisfied the defendants had fair trials.

The government's case rested on the testimony of an accomplice of the defendants, and his testimony, though it stood alone, the jury accepted. But this fact, in view of our decisions in Knoell v. United States, 239 F. 16, 152 C.C.A. 66, and Gretsch v. United States, 242 F. 897 155 C.C.A. 485, and of the Supreme Court in Caminetti v United States, 242 U.S. 470, 37 Sup.Ct. 192, 61 L.Ed. 442, L.R.A. 1917F, 502, Ann. Cas. 1917B, 1168, warranted the court below in instructing the jury that it could convict on the uncontradicted testimony of the accomplice of the defendants. We have duly considered the numerous assignments of error bearing on the admission and rejection of evidence, documents, etc., and we find nothing therein to warrant a reversal of the case.

This leads us to consider certain other assignments of error based on portions of the judge's charge to the jury. These assignments, which now specify certain excepts of the charge and assign them for error, are not based on any specific objection made and exception taken when the charge was delivered. Had such a course been followed, the attention of the trial judge would then have been specifically called to alleged specific errors, and he would then and there have had an opportunity to correct such inadvertence, slip, omission, or mistake, if one was made, or he could then and there have refused to do so. Such a course would have resulted in several things which tend to the working out of justice by timely correction of alleged mistakes, and to the avoidance of needless expense and delays incident to a fruitless resort to the appellate court. This prompt, specific, and clearly pointed out practice, a practice which is made mandatory on judges in this circuit, is unmistakably pointed out in rule 10 of this court (224 F. vii, 137 C.C.A. vii), which directs:

'The judges of the District Courts shall not allow any general exception to the whole of the charge to the jury in a civil or a criminal trial at common law, nor shall a series of exceptions be allowed which produces the same result. But the party excepting shall state distinctly and separately the several matters in such charge to which he excepts, and

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