Harper v. United States
| Decision Date | 30 June 1944 |
| Docket Number | 12590.,No. 12589,12589 |
| Citation | 143 F.2d 795 |
| Parties | HARPER v. UNITED STATES. BENNIGHT v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
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David H. Cannon, of Los Angeles, Cal. (Morris A. Shenker, of St. Louis, Mo., on the briefs), for appellants.
Harry C. Blanton, U. S. Atty., of Sikeston, Mo. (David M. Robinson, Asst. U. S. Atty., of St. Louis, Mo., on the brief), for appellee.
Before GARDNER, JOHNSEN, and RIDDICK, Circuit Judges.
Appellants, Carey Judson Harper and Elmer L. Bennight, together with one Robert Rucker, were indicted in an indictment containing nine counts. Counts 1, 2, 3 and 8 of the indictment charge substantive offenses for violation of the Securities Act, Section 77q (a)(1), Title 15, U.S.C.A., while counts 4, 5, 6 and 7 charge substantive offenses for violation of the Mail Fraud Act, Section 338, Title 18 U.S. C.A. Count 9 charges a conspiracy to commit the substantive offenses described in the preceding counts, in violation of Section 88, Title 18 U.S.C.A. The scheme is set out and described in the first count of the indictment and by reference is incorporated and embodied in the other substantive counts. The counts alleging violation of the Securities Act allege that the device, scheme and artifice was to defraud, while the counts charging violation of the Mail Fraud Act charge that the scheme was to defraud and to obtain money and property by means of false pretenses, promises and representations. The ninth count alleges a conspiracy to commit the offenses charged in the substantive counts of the indictment, charging that the three defendants named, as well as other named persons not indicted, entered into the conspiracy.
The indictment was returned June 29, 1942. On March 20, 1943, the date set for hearing, appellant Harper appeared specially and interposed a motion for continuance. The motion was denied. Rucker pleaded nolle contendere. Appellants Harper and Bennight each interposed a demurrer to all the counts of the indictment, which were overruled, and they then entered pleas of not guilty. Appellants waived trial by jury and trial to the court began March 23, 1943. The trial consumed several days, resulting in conviction of each of the appellants upon all nine counts of the indictment. Harper was sentenced to serve five years on counts 1, 4, 5 and 8, to run concurrently with each other, and five years on counts 2, 3, 6 and 7, to run concurrently with each other but consecutively to the sentences imposed upon counts 1, 4, 5 and 8. He was also sentenced to serve a term of two years on the ninth count, this sentence to run concurrently with the sentences imposed under the other eight counts, making a total of ten years imposed upon Harper. Bennight was sentenced to serve two years on each count, the sentences to run concurrently.
Each appellant has appealed separately. A joint assignment of errors, a joint transcript of the record and a joint brief have been filed, supplemented by an additional brief filed on behalf of the appellant Bennight. In their joint brief, the grounds upon which appellants seek reversal are stated as follows: (1) Error in denying appellants' motion for continuance; (2) insufficiency of the indictment; (3) errors in rulings on evidence, (a) improper admission of evidence on matters outside the scope of the indictment, (b) rulings preventing proper cross-examination of appellee's witnesses, (c) improper admission of hearsay evidence, (d) improper admission of documentary evidence and of testimony based thereon; (4) errors in excluding evidence offered by appellants. In addition to the foregoing questions, it is urged by appellant Bennight in a separate brief that the evidence was insufficient to warrant his conviction. Each appellant appeared by separate counsel. While it is recited in the joint brief that the motion of appellant Harper for a continuance was joined in by appellant Bennight, the record shows that the motion was made solely and independently by Harper. No severance had been granted nor asked, and there is nothing in the record to indicate that Harper's codefendants were desirous of a continuance. In these circumstances he could not properly apply for a continuance as to himself alone. If granted, it would operate as a continuance of the entire case. This could not properly be done as we must assume that the other defendants were ready for trial and they were entitled to a speedy hearing.
The ground upon which appellant Harper sought a continuance was that he had not, prior to March 18, 1943, been furnished a complete copy of the indictment and that his attorneys had not had an opportunity to prepare for trial. The indictment was returned June 29, 1942. On October 21, 1942, Harper, through his attorney, requested that he be permitted to give bond in the State of Oklahoma. On October 23, 1942, he, with his attorney, appeared before a United States Commissioner at Holdenville, Oklahoma, for the purpose of giving bond for his appearance. There was filed before this Commissioner a fugitive complaint, to which was attached a complete certified copy of the indictment. He and his attorney might, if they desired, have examined the indictment. Following the giving of this appearance bond, and on October 29, 1942, Harper's Oklahoma attorney, Walter Billingsley, wrote the United States Attorney at St. Louis, Missouri, requesting a copy of the indictment. In response the United States Attorney sent Mr. Billingsley, under date November 2, 1942, a complete copy of the indictment, except that the names of the alleged conspirators, including the defendants and appellants, had been deleted. On November 5, 1942, Mr. Billingsley, representing Harper, acknowledged receipt of the copy of the indictment, making no complaint whatever as to the deletions that had been made therefrom. No further request was made upon the United States Attorney, nor upon the clerk of the court where the indictment was filed until March 18, 1943. This was four days prior to the date set for the trial. In the meantime, on February 18, 1943, Billingsley wrote the United States Attorney at St. Louis, requesting a resetting of the case from March 22, 1943. The United States Attorney answered, saying that the government could not agree to a resetting, and nothing further was heard from Mr. Billingsley. On March 8, 1943, David H. Cannon, an attorney at Los Angeles, California, telegraphed the United States Attorney at St. Louis that he was representing Harper, and asked for a two weeks' postponement of the case. The United States Attorney telegraphed Mr. Cannon that he could not consent to a continuance. On March 18, Harper's attorney, Cannon, requested of the clerk permission to see the original indictment and was informed that he could not see it without the consent of the United States District Attorney because it was "suppressed." Cannon then requested the United States Attorney for permission to see the indictment and the clerk was thereupon instructed to allow Cannon to examine the indictment. Owing to the lateness of the hour he was unable to make the examination until the morning of March 19, 1943.
So far as this ground for continuance is concerned, the short answer would seem to be that the government was under no obligation to furnish Harper with a copy of the indictment. Section 562, Title 18 U.S.C.A., provides that when any person is indicted for treason, a copy of the indictment, a list of the jury and of the witnesses to be produced on trial, with certain other information shall be delivered to the defendant at least three entire days before he is tried, and that when a person is indicted for any other capital offense a copy of the indictment and a list of the jurors shall be delivered to him at least two days before the trial. Section 562a, Title 18 U.S.C.A., provides that: "In each criminal case not provided for in section 562 of this title the clerk shall furnish each defendant, upon his request, a copy of any information filed or indictment returned against him, the fees for said copy and the certificate thereto, at the rates provided for by law, to be taxed as costs * * *."
It does not appear that Harper ever requested a copy of the indictment from the clerk, nor was there a refusal to furnish him such copy. Taylor v. Hudspeth, 10 Cir., 113 F.2d 825. It is conceded that present counsel for Harper saw the original indictment on the morning of March 19, 1943. The trial did not formally commence until March 23, 1943. It is observed that even in a capital offense, other than treason, the defendant is entitled to be furnished with a copy of the indictment "two entire days before the trial." Harper already had a copy from which had been deleted the names of the co-conspirators and the other defendants. Hence, when his attorney examined the original he had only to fill in the names that had been thus deleted. In any event, he at no time complied with the plain requirements of Section 562a by requesting that the clerk furnish him a copy of the indictment.
The second ground of the motion was that counsel had not been able sufficiently to familiarize himself with the facts of the case to defend Harper at the trial. Harper had given bond on October 23, 1942, at which time he was represented by Oklahoma counsel so that he had approximately five months within which to prepare for trial and to inform counsel whom he had selected as to the facts in the case. His Oklahoma attorney was advised on February 18, 1943, that the government would not consent to a postponement of the trial and counsel who finally appeared for Harper at the trial was advised on March 8, 1943, that the government would not consent to a continuance of the case. We do not think Harper could create grounds for a continuance by employing counsel from a distant state at a late date, who might not be familiar with the...
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