Hill v. United States

• Decision Date: 09 October 1926
• Docket Number: No. 7108.,7108.
• Citation: 15 F.2d 14
• Parties: HILL v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

15 F.2d 14 (1926)

HILL v. UNITED STATES.

No. 7108.

Circuit Court of Appeals, Eighth Circuit.

October 9, 1926.

June P. Wooten, of Little Rock, Ark. (J. E. Chambers and Wilson & Majors, all of Danville, Ark., and Hays, Priddy & Rorex, of Russellville, Ark., on the brief), for plaintiff in error.

Charles F. Cole, U. S. Atty., of Batesville, Ark., for the United States.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and JOHN B. SANBORN, District Judge.

JOHN B. SANBORN, District Judge.

The plaintiff in error — defendant in the court below, and who will be so referred to in this opinion — was indicted by a grand jury sitting in the Eastern division of the Eastern district of Arkansas, for a crime committed in the Western division. The case was transferred for trial to the Western division, the court denied a motion to quash the indictment, and thereafter the defendant was tried, convicted, and sentenced by the court sitting in that division.

Only one assignment of error is relied upon, and that is that the court erred in overruling the defendant's motion to quash the indictment. The defendant contends that the grand jury was impaneled and sworn "as the grand inquest of the United States for the Eastern division of the Eastern district of Arkansas"; that its members were drawn exclusively from the Eastern division, and that therefore its jurisdiction was limited to crimes committed in that division alone.

The first matter to be considered is whether the question presented is properly before this court for review. No exception was taken by the defendant to the ruling of the court denying the motion to quash.

A motion to quash an indictment is addressed to the discretion of the court, and will ordinarily not be reviewed in an appellate court. In the case of United States v. Rosenburgh, 74 U. S. (7 Wall.) 580, 19 L. Ed. 263, the court said:

"The motion to quash, upon which the question now before us arose, was clearly determinable as a matter of discretion. It was preliminary in its character, and the denial of the motion could not finally decide any right of the defendant. The rule laid down by the elementary writers is, that `a motion to quash is addressed to the sound discretion of the court, and if refused, is not a proper subject of exception.' When made in behalf of defendants, it is usually refused, unless in the clearest cases, and the grounds of it are left to be availed of, if available, upon demurrer or motion in arrest of judgment."

The same view is expressed in United States v. Avery, 13 Wall. 251, 20 L. Ed. 610; United States v. Hamilton, 109 U. S. 63, 3 S. Ct. 9, 27 L. Ed. 857; Logan v. United States, 144 U. S. 263, 282, 12 S. Ct. 617, 36 L. Ed. 429; Durland v. United States, 161 U. S. 306, 314, 16 S. Ct. 508, 40 L. Ed. 709; McGregor v. United States, 134 F. 187, 69 C. C. A. 477; Goodfriend v. United States (C. C. A.) 294 F. 148; Lewis v. United States (C. C. A.) 295 F. 441; Carlisle v. United States, 194 F. 827, 114 C. C. A. 531. In the last case, which was decided by the Circuit Court of Appeals of the Fourth Circuit, the following language appears in the opinion:

"A motion to quash an indictment is addressed to the discretion of the court, and will not be reviewed in an appellate court, save only in cases where there has been such failure to properly exercise the judicial discretion as to cause real injustice."

To the same effect is the case of Stewart v. United States, 300 F. 769, an opinion of this court.

Even though it were held that the denial of the motion to quash the indictment in this case was such an abuse of discretion by the trial court that the question would be reviewed here, nevertheless it would not be properly before us, because no exception was taken to the ruling. Carlisle v. United States, supra; Edwards v. United States, 7 F.(2d) 357, a decision by this court, in which the following language appeared:

"None of the assignments of error raise questions based on rulings of the trial court duly excepted to. This court has repeatedly held that such assignments are unavailing. Short v. United States, 221 F. 248, 137 C. C. A. 104; Hoskins v. United States (C. C. A.) 4 F.(2d) 804; Feinberg v. United States (C. C. A.) 2 F.(2d) 955."

However, it may as well be said that, while the question is not free from doubt, and while the method used in drawing and impaneling the grand jury which returned this indictment is not to be commended and ought not to be followed, we see no reason to depart from the conclusion reached by this court in the case of Shaw v. United States, 1 F.(2d) 199. It is and must be conceded that, under section 53 of the Judicial Code (Comp. St. § 1035), an indictment may be found in one division of a district for a crime committed in another division of the same district, provided the grand jury is impaneled for the entire district. Rosencrans v. United States, 165 U. S. 257, 17 S. Ct. 302, 41 L. Ed. 708; Salinger v. Loisel, 265 U. S. 224, 44 S. Ct. 519, 68 L. Ed. 989; Biggerstaff v. United States (C. C. A.) 260 F. 926; Shaw v. United States, supra.

The record in this case shows that the venire for this grand jury required that the members be summoned to come before "our District Court of the United States for the Eastern Division of the Eastern District of Arkansas, at the March term, A. D. 1925, thereof on Tuesday, the 10th day of March, 1925, at 11 o'clock in the forenoon of said day, at the United States District Court room in the city of Helena, Arkansas, as the grand inquest of the United States for the Eastern district of Arkansas." It was sworn and impaneled as "the grand inquest of the United...