Hagan v. United States

• Decision Date: 28 November 1925
• Docket Number: No. 6681.,6681.
• Citation: 9 F.2d 562
• Parties: HAGAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

9 F.2d 562 (1925)

HAGAN v. UNITED STATES.^*

No. 6681.

Circuit Court of Appeals, Eighth Circuit.

November 28, 1925.

J. Francis O'Sullivan, of Kansas City, Mo. (Harry Friedberg and Frans E. Lindquist, both of Kansas City, Mo., on the brief), for plaintiff in error.

Alton H. Skinner, Asst. U. S. Atty., of Topeka, Kan. (Al. F. Williams, U. S. Atty., and Frank H. McFarland, Asst. U. S. Atty., both of Topeka, Kan., on the brief), for the United States.

Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

STONE, Circuit Judge.

This is a writ of error from a conviction upon two indictments, consolidated for trial, against Hagan and another, the first indictment charging transportation of an automobile and the second indictment charging sale of the same automobile in violation of the Dyer Act (Comp. St. Ann. Supp. 1923, §§ 10418b-10418f). A light sentence was given on each indictment to be served concurrently.

Several grounds of error are presented here.

I. The indictment is attacked under two contentions. The first is a failure to allege that the automobile was transported upon some vehicle in interstate commerce as distinguished from moving under its own power; and, second, a claimed unconstitutionality of the act if it be interpreted as covering an automobile moving under its own power. The first of these contentions is unsound because the indictment alleges that defendants did "transport and cause to be transported in interstate commerce." This language is sufficiently broad to cover movement either under its own power or where the automobile was carried as freight. A particularization in this respect was not important to the statement of the offense and, therefore, cannot be urged against the sufficiency of the indictment although a statement of the character of such transportation might have been made more particular had defendant sought to have this done by a bill of particulars. As to the second contention, the validity of the Dyer Act has been sustained against attacks upon similar grounds in Brooks v. United States, 267 U. S. 432, 45 S. Ct. 345, 69 L. Ed. 699, 37 A. L. R. 1407; Hughes v. United States, 4 F.(2d) 387 (8th C. C. A.); Whitaker v. Hitt, 52 App. D. C. 149, 285 F. 797, 27 A. L. R. 951; Kelly v. United States, 277 F. 405 (4th C. C. A.). And see Kelley v. Rhoads, 188 U. S. 1, 23 S. Ct. 259, 47 L. Ed. 359.

It is also claimed that the indictment failed to sufficiently describe the stolen car. The description in the indictment was of a Marmon four-passenger touring automobile bearing designated motor and body numbers and being the property of a named person. It is difficult to treat this suggestion seriously.

II. The main prosecuting witness was one Raymond Tate, who was, at the time of trial, serving a sentence in the federal penitentiary. It is claimed that he was an incompetent witness. If the competency of witnesses in a criminal case is to be determined by the law of the state where the case is tried, section 1, P. 267, Laws of Kansas 1915, removes the old common-law disqualification. If the federal courts determine for themselves the rules to be applied respecting competency of witnesses in criminal trials before them, that disqualification has been removed by the case of Rosen v. United States, 245 U. S. 467, 38 S. Ct. 148, 62 L. Ed. 406. Also, see Hurwitz v. United States, 299 F. 449, 453 (8th C. C. A.).

III. The contention that the application for a continuance should have been allowed is unsound because no abuse of discretion is shown in the record by this ruling and the government had made the statutory admission.

IV. Objection is emphasized in an attack upon a portion of the charge. Before the trial began, this defendant applied for a continuance on the ground of absence of a witness, Wilson. It was claimed, in the application, that Wilson would testify that he had sold this car to defendant several days before the automobile is alleged to have been stolen. The record discloses the following statement in the evidence:

"Mr. James: With your honor's permission and consent I would like to read Mr. Wilson's testimony at this time.

"The Court: Very well.

"Mr. James: The defendant Hagan at this time offers in evidence the testimony of the witness Frank E. Wilson, which is admitted by the government, that he, the said Frank E. Wilson, sold the automobile —

"The Court: No.

"Mr. James: Which is admitted by the government that if he, the Frank E. Wilson, was present at the trial of this case that he would testify that he sold the...