Hargrove v. United States
Decision Date | 27 March 1928 |
Docket Number | No. 7864.,7864. |
Citation | 25 F.2d 258 |
Parties | HARGROVE v. UNITED STATES. |
Court | U.S. Court of Appeals — Eighth Circuit |
M. D. Hartsell and Archibald Bonds, both of Muskogee, Okl., for plaintiff in error.
Frank Lee, U. S. Atty., of Muskogee, Okl. (W. F. Rampendahl, Asst. U. S. Atty., of Muskogee, Okl., on the brief), for the United States.
Before STONE and VAN VALKENBURGH, Circuit Judges, and KENNEDY, District Judge.
Plaintiff in error was convicted upon charges presented in two counts of an indictment returned at the January term, 1927, of the District Court for the Eastern District of Oklahoma. The first count charged possession of intoxicating liquor, to wit, whisky, in Muskogee county, Okl.; said county having been within the limits of the Indian Territory and a part thereof, prior to the admission of the state of Oklahoma into the Union, a place where the introduction of intoxicating and spirituous liquor is and was prohibited by federal statute. The second count charged a sale of whisky in violation of the National Prohibition Act (27 USCA). Both offenses were committed January 26, 1927. Four specifications of error, in substance, are assigned: (1) What is termed the general activity of the court throughout the trial to the prejudice of the defendant; (2) the admission of incompetent testimony; (3) an argumentative charge; (4) disrespect on the part of the court toward defendant's counsel. These specifications will be considered in their order.
1. Upon the first point urged, the record discloses that the court asked many questions of witnesses, and indulged in some comment upon various phases of the testimony. In but few instances was objection made and exception preserved. We think the participation of the court to the extent shown was unnecessary and the practice one to be indulged only in exceptional cases and with caution. However, a careful examination of the record convinces that the questions asked were calculated and intended only to bring out the full facts for the consideration of the jury without prejudice to the defendant, except in so far as a full presentation of the facts might have that incidental effect. The comments of the court were for the purpose of keeping counsel within bounds and for maintaining the orderly progress of the trial. As said by this court in Rudd v. United States (C. C. A.) 173 F. 912:
"A judge should not be a mere automatic oracle of the law, but a living participant in the trial, and so far as the limitations of his position permit should see that justice is done."
It is conceded that it is within the authority of the court to examine witnesses, provided in so doing he does not indicate by words or manner either his disapproval of a witness or of a material fact which a litigant is endeavoring to establish. We do not think the court in the instant case offended against this rule.
2. Plaintiff in error operated a filling station at a point about four miles west of the city of Muskogee, Okl. It was there that the alleged sale of the whisky was made. The residence of the plaintiff in error was situated at a little distance to the rear of the filling station. It was testified that when the government officers asked plaintiff in error for the whisky, a negro left the rear entrance to the filling station, went to the rear of the residence, and returned in a few moments with a bulky package; that thereupon, plaintiff in error came out from his building and deposited in the car of the purchasers a quart jar of corn whisky; for this he was paid $3.50. The next day officers procured a search warrant and made a search of defendant's premises. They found a number of fruit jars similar to that in which the whisky was delivered; also a syphon and an empty case of fruit jars. The syphon contained some whisky. The testimony, to the admission of which objection is made, occurred in the cross-examination of one Pollan, a government officer, by counsel for plaintiff in error.
The exception taken was to the refusal to strike out the answer of the witness. It will be observed that action was merely suspended. Later on the court ruled as follows:
The remark of the court to which exception is taken was unnecessary, but was obviously made for the purpose of controlling the orderly trial of the case from its view point. The statement subsequently made in ruling upon the admission of the evidence removed any prejudicial effect, if such existed. The cross-examination of the witness was not obstructed. In view of his testimony that he did not see the whisky bought, the comment was harmless. Furthermore, the testimony sought to be stricken out was competent because it was closely related to the very essence of the crime charged. St. Clair v. United States (C. C. A. 8) 12 F.(2d) 376-378. The containers produced under the search warrant were of the same kind as that in which the whisky sold was delivered. They were found in the same place from which witnesses testified the whisky bought was procured. The syphon containing whisky was another piece of pertinent evidence.
3. The exception to the court's charge as argumentative was general in its nature, and a large part of the charge is quoted in the assignments of error. We do not deem it necessary to quote in extenso. A careful examination of the charge discloses that this assignment is without merit. The facts are recited in considerable detail, but there is no unfairness in the recital. In fact there is no approach to argument therein. Plaintiff in error cannot complain of the legitimate inferences to be drawn from a clear and comprehensive statement of the facts. Such a recital is permitted, and in many cases demanded. Throughout the charge the jurors were amply cautioned that their memory, and not that of the court, was to be relied upon, and that their judgment of the effect of the evidence was to be decisive.
4. In support of the charge of disrespect on the part of the court towards defendant's counsel to the prejudice of the defendant, reference is made to a colloquy between court and counsel when the court asked, at the conclusion of the charge, whether any instructions were desired by either side.
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