Harris v. United States, 4254-4258.
| Decision Date | 02 July 1951 |
| Docket Number | No. 4254-4258.,4254-4258. |
| Citation | 190 F.2d 503 |
| Parties | HARRIS v. UNITED STATES. MITCHELL v. UNITED STATES. TILLERY v. UNITED STATES. PEARSON v. UNITED STATES. PARKER v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Creekmore Wallace, Oklahoma City, Okl. (C. Lewis Dollarhide, Oklahoma City, Okl., on the brief), for appellants.
Harry G. Foreman, Asst. U. S. Atty., Norman, Okl. (Robert E. Shelton, U. S. Atty., Oklahoma City, Okl., on the brief), for appellees.
Before BRATTON, HUXMAN and PICKETT, Circuit Judges.
The indictment in this case contained twenty counts. The third count charged that John A. Pearson engaged in carrying on the business of a wholesale dealer in liquor in Pottawatomie County, Oklahoma, and wilfully failed to pay the special tax imposed by sections 3250 and 3254 of the Internal Revenue Code as required by section 3271(a). 26 U.S.C.A. §§ 3250, 3254, 3271(a). The fourth count charged that S. O. Harris while engaged in carrying on the business of a wholesale dealer in liquor neglected and refused to keep and file records in the form prescribed by the Commissioner of Internal Revenue. The fifth count charged that Harris engaged in carrying on the business of a wholesale dealer in liquor and wilfully failed to pay the special tax. The sixth count charged that during the fiscal year 1950 Otis V. Tillery was engaged in carrying on the business of a wholesale dealer in liquor and wilfully failed to pay the special tax; and the seventh count charged a like offense against Tillery during the fiscal year 1951. The ninth count charged that Steve Mitchell, Jr., engaged in carrying on the business of a wholesale dealer in liquor and wilfully failed to pay the special tax; and the thirteenth count charged a like offense against Lloyd A. Parker and Nolan W. Waymon. Each of the defendants entered a plea of nolo contendere to the charge or charges against him. Pearson was sentenced on the third count to imprisonment for a term of eighteen months and to pay a fine of $1,000. Harris was sentenced to imprisonment for a period of two years on each of the fourth and fifth counts and to pay a fine of $1,000 on each of such counts, with the provision that the sentences of confinement should run concurrently. Tillery was sentenced to imprisonment for a period of eighteen months on each of the sixth and seventh counts and to pay a fine of $1,000 on each of such counts, with the provision that the sentences of confinement should run concurrently. Mitchell was sentenced on the ninth count to imprisonment for a term of two years and to pay a fine of $1,000. And Parker was sentenced on the thirteenth count to imprisonment for a term of one year and one day and to pay a fine of $100. Appeals were seasonably perfected.
Appellant Harris advances the contention that there was such inconsistency between the fourth and fifth counts of the indictment that the sentences imposed upon him under them should not be permitted to stand. And as we understand, appellant Tillery presents a somewhat similar contention in respect to the sixth and seventh counts and the sentences imposed upon him under them. The question was not presented to the trial court in any form. Inconsistency, duplicity, or repugnancy in an indictment must be seasonably challenged by motion to quash, demurrer, or motion to require the government to elect. And if not raised in one of such methods it is waived. The objection comes too late when raised for the first time on appeal. Lemon v. United States, 8 Cir., 164 F. 953; Yates v. United States, 9 Cir., 151 F.2d 580; Beauchamp v. United States, 6 Cir., 154 F.2d 413, certiorari denied, 329 U.S. 723, 67 S.Ct. 66, 91 L.Ed. 626.
Though couched in other language, appellants Pearson, Tillery, Mitchell, and Parker each contend in effect that in the light of certain facts apparent upon the face of the record and not denied by the government, they should have been granted immunity from punishment. At the time the pleas of nolo contendere were entered, the causes were referred to the probation officer for investigation and report. The investigation was made, reports were submitted, and the court...
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