Harley v. United States

• Decision Date: 04 November 1920
• Docket Number: 1810.
• Citation: 269 F. 384
• Parties: HARLEY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

269 F. 384

HARLEY et al. v. UNITED STATES.

No. 1810.

United States Court of Appeals, Fourth Circuit.

November 4, 1920

N. G Evans, of Edgefield, S.C., for plaintiffs in error.

C. G Wyche, Asst. U.S. Atty., of Greenville, S.C.(J. Wm Thurmond, U.S. Atty., of Edgefield, S.C., on the brief), for the United States.

Before KNAPP and WOODS, Circuit Judges, and SMITH, District Judge.

KNAPP circuit Judge.

Plaintiffs in error, herein called defendants, were found guilty of illicit distilling and seek by this writ of error to reverse the judgment of conviction.

On the merits the record raises no question for review.Defendants apparently acquiesced in the submission of the case to the jury, as no motion was made for a directed verdict, either at the conclusion of the government's proofs or on the whole testimony.Nor was any exception taken to the judge's charge.Indeed, the only exception at the trial relates to a wholly unimportant statement by one of the government's witnesses; it is not even referred to in the brief of defendants' counsel.

After the adverse verdict a motion was made on the minutes for a new trial, on the ground that the evidence was insufficient to sustain the finding of the jury, and the denial of this motion is assigned as error.But the question cannot thus be brought to this court.It has repeatedly been held that the allowance or refusal of a new trial is purely a matter of discretion, and therefore not reviewable, except for abuse of discretion, which is not here alleged.Bishop Co. v. Shelhorse,141 F. 648, 72 C.C.A. 337;Pocahontas Distilling Co. v. United States,218 F. 782, 134 C.C.A. 566;Moore v. United States,150 U.S. 62, 14 Sup.Ct. 26, 37 L.Ed. 996;Holder v. United States,150 U.S. 92, 14 Sup.Ct. 10, 37 L.Ed. 1010.We take occasion to say, however, that careful examination of the testimony satisfies us that enough was shown by the government to raise a substantial question of fact which was properly submitted to the jury.On the merits the judgment must be affirmed.

The record presents another question which should perhaps be briefly noticed.The facts are not in dispute.Defendants were tried and convicted, motion for new trial on the minutes made and denied, and sentence imposed on the 6th of November 1919.On the same day, counsel for defendants having announced in open court his intention to sue out a writ of error, an order was passed 'that the time for the service of the bill of exceptions in said case be allowed at any time within 60 days from this date. ' The term at which this took place expired and the court adjourned without day on the 13th of that month.No other order was made, nor was any asked for, during that term.Later the time for filing bill of exceptions was extended by order to the 15th of March, 1920.The writ of error was sued out within the time allowed by statute.On the 30th of January notice of motion, to be heard on the 3d of February, for a new trial on the ground of newly discovered evidence, set forth in the petition of defendants and certain affidavits, was served on the United States attorney.Hearing of this motion was had on the 18th of February.At that time the writ of error had not been sued out, nor had the bill of exceptions been allowed and filed.Without passing upon the merits, the court denied the motion for want of power to entertain it, the term at which the judgment was entered...