Haussener v. United States

• Decision Date: 27 March 1925
• Docket Number: No. 6805,6806.,6805
• Citation: 4 F.2d 884
• Parties: HAUSSENER v. UNITED STATES. SELLERS v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

4 F.2d 884 (1925)

HAUSSENER v. UNITED STATES.

SELLERS v. SAME.

Nos. 6805, 6806.

Circuit Court of Appeals, Eighth Circuit.

March 27, 1925.

Raymond T. Coffey, of Omaha, Neb., for plaintiffs in error.

George A. Keyser, Asst. U. S. Atty., of Omaha, Neb. (James C. Kinsler, U. S. Atty., and Andrew C. Scott, Asst. U. S. Atty., both of Omaha, Neb., on the brief), for the United States.

Before LEWIS, Circuit Judge, and VAN VALKENBURGH and FARIS, District Judges.

FARIS, District Judge.

Plaintiffs in error were jointly informed against, and jointly tried and convicted on three counts of an information, charging them with three several unlawful sales of intoxicating liquor. They bring up these convictions for review, upon separate writs of error. Since all of the points urged for reversal, save one, are common to both cases, and are presented in a single brief, these writs of error may, for convenience, be disposed of by a single opinion. With commendable forbearance, and with due regard to the labors of an already over-burdened court, defendants assign only 42 errors. These they further reduce by classification to six contentions, which we are warranted, therefore, in considering as all of the errors on which they purpose to rely.

Briefly stated, these errors are: (a) That the information is insufficient and fatally bad; (b) that the panel of trial jurors had sat in the trial of prosecutions against others than defendants, wherein the witnesses for the government here had been witnesses, and that some of such jurors, upon their voir dire examination, said that they had formed an opinion as to the credibility of such witnesses from hearing them testify in other cases; (c) that there was no sufficient evidence as to the percentage of alcohol and fitness for beverage purposes of the liquid or liquids involved; (d) that impeaching evidence as to one Banner, a witness for the government, was improperly excluded; (e) and that defendant Haussener was improperly cross-examined by the government as to certain prior convictions. Eliminating duplications in the assignment, the errors assigned are further reduced to the five set forth above.

Counts 1 and 2 charge the sale of intoxicating liquor, without naming the sort of liquor sold, as also the sale of alcohol. Count 3 charges the sale of alcohol only; neither count alleges the name of the person to whom such sales were made. Counts 1 and 2, technically considered, may possibly be duplicitous; but since no attack was made upon the information by demurrer, or motion to quash, or even by a motion to elect, or at all, except in the assignment of errors, the duplicity therein was cured by the verdict. State v. Nieuhaus, 217 Mo. 332, 117 S. W. 73.

The failure of these counts to set out the names of the persons to whom such sales were made is cured by the provisions of section 32 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½s), which provides, in substance, that it shall not be necessary to set out in the information the name of the purchaser of the liquor, and further provides that the defendant may, on motion and application therefor, procure a bill of particulars. If so it be that, in the light of these provisions, section 32 is, as now contended, obnoxious to the federal Constitution, such contention ought to have been timely made. It was never made till the filing of the assignment of errors, and for the first time appears in the case in that document. In such situation it cannot be said that, if such lack of allegation of the name of the vendee constitute error, it is an error of the trial court, because the trial court was never called on to rule on it, and has never ruled on it. Serra v. Mortiga, 204 U. S. 470, 27 S. Ct. 343, 51 L. Ed. 571.

Courts do not travel afield in order to rule upon the alleged constitutional invalidity of a statute, such as that here involved. The constitutional question here urged is merely incidental to the actual point in the case. Courts will, of course, notice and decide questions involving the constitutional validity of a statute which creates the offense on which a conviction is bottomed, even when such questions are raised for the first time on writ of error. But no such situation is presented here; for the information here attacked would be good after verdict, even if section 32, supra, had never been enacted. Serra v. Mortiga, supra. We conclude that there is nothing in this contention, and are of opinion that it should be disallowed.

Five jurors who sat in this case had theretofore sat in other cases, against other persons, charged with some violation of the Volstead Act, wherein one or both of the government prohibition agents testifying in this case had also been witnesses. Touching the qualifications of these jurors it developed upon their voir dire examination that some of them had formed and still had a certain opinion as to the credibility of these prohibition agents; but these jurors said, in substance, that they could try the case in the same fair state of mind as they could have done if these witnesses had been strangers, and if they had never heard them testifying in other cases.

The situation thus presented is novel and anomalous, and it is too plain for argument that no such procedure ought to be held reversible error, unless in the presence of an examination which shows that the attitude of the jurors is such as to preclude a fair and impartial trial, beyond cavil or question. This is so, because in the very nature of the situation practically all prosecutions for violations of the Volstead Act (Comp. St. Ann. Supp. 1923, §§ 10138¼ et seq.) must be bottomed upon the testimony of prohibition agents. If, when one case has been tried, the entire ...