Harkline v. United States

• Decision Date: 09 March 1925
• Docket Number: No. 6639.,6639.
• Parties: HARKLINE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

4 F.2d 526 (1925)

HARKLINE v. UNITED STATES.

No. 6639.

Circuit Court of Appeals, Eighth Circuit.

March 9, 1925.

H. J. Mackey, of Oklahoma City, Okl., for plaintiff in error.

W. A. Maurer, U. S. Atty., and James A. Ingraham, Asst. U. S. Atty., both of Oklahoma City, Okl.

Before SANBORN, Circuit Judge, and TRIEBER and PHILLIPS, District Judges.

PHILLIPS, District Judge.

A. L. Harkline, hereinafter called defendant, was charged by indictment with the unlawful possession of intoxicating liquor, to wit, whisky, in and upon Indian country. He was tried, found guilty and sentenced. The proceedings at the trial were not reported. After a writ of error to this court had been allowed, the attorney for defendant prepared and filed a proposed bill of exceptions, and the United States attorney and the attorney for the defendant entered into and filed a written stipulation to the effect that such proposed bill of exceptions should constitute the bill of exceptions in the cause. The proposed bill of exceptions was then tendered to the trial court for approval. Whereupon the trial court entered the following order:

"On this 18th day of March, 1924, the said defendant presents a proposed bill of exceptions herein for allowance and settlement. It is thereupon —

"Ordered, that the same be and it is hereby refused on the ground that the cause was tried to a jury on the 21st day of January, 1924, and was not reported by a stenographer, and by reason of having tried many later cases the testimony and trial proceedings herein are not within the recollection of the court. To which action the defendant excepts."

The facts as shown by the proposed bill of exceptions are these:

A. A. Graves, chief of police, of Shidler, Osage county, Okl., received a report from an employee of the Kidd Lumber Company at Shidler that some one was stealing lumber. Graves, accompanied by Frank Moore and R. W. Dunham, a deputy special officer in the Indian service, went to the lumber yard. After discussing the report with the lumber company employee, they drove about town in an automobile looking for the alleged lumber thieves, but failed to find them, and came back a second time to the lumber yard. In a few minutes an automobile driven by the defendant and occupied by defendant and two other men appeared. The lumber company employee stated to Graves, "They are the parties." Graves, Dunham and Moore proceeded to the automobile of the defendant, noticed that the occupants were under the influence of liquor, ordered them out, searched the automobile, and found therein a half pint of whisky.

At the close of the testimony of the first witness for the government, it having appeared from his cross-examination that none of the officers were in possession of a search warrant, counsel for the defendant offered the following objection:

"The defense demurs to the evidence offered by the government, on the grounds that the same is incompetent, irrelevant and immaterial, having been obtained by an illegal search and seizure."

This was overruled.

At the close of the government's case in chief, the defendant moved for a directed verdict, and the...