Hillegass v. United States

• Decision Date: 28 November 1910
• Docket Number: 1,366.
• Citation: 183 F. 199
• Parties: HILLEGASS v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

183 F. 199

HILLEGASS v. UNITED STATES.

No. 1,366.

United States Court of Appeals, Third Circuit.

November 28, 1910

John McClintoch, Jr., for plaintiff in error.

J Whitaker Thompson, U.S. Atty., and Walter C. Douglas, Jr. Asst. U.S. Atty.

Before BUFFINGTON and LANNING, Circuit Judges, and CROSS, District judge.

LANNING Circuit Judge.

The defendant, De Witt C. Hillegass, was convicted in the lower court under an indictment charging him with aiding and abetting the cashier of the Farmers' National Bank of Boyertown, Pa., in the misapplication of funds of the bank contrary to the provisions of section 5209 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 3497). Judgment having been pronounced against him, he now prosecutes this writ of error.

The first assignment of error is based on the refusal of the court to grant the defendant's motion to quash the indictment. A motion to quash is ordinarily addressed to the discretion of the court, and a refusal to grant it cannot generally be assigned for error. Logan v. United States, 144 U.S. 263, 282, 12 Sup.Ct. 617, 36 L.Ed. 429; Durland v. United States, 161 U.S. 306, 314, 16 Sup.Ct. 508, 40 L.Ed. 709; Endleman v. United States, 86 F. 456, 458, 30 C.C.A. 186;

Radford v. United States, 129 F. 49, 51, 63 C.C.A. 491; Dillard v. United States, 141 F. 303, 305, 72 C.C.A. 451. Where the objection goes to the constitution of the jury, the old common-law practice, if the ground of objection was discovered before the finding of the bill, was to challenge the jurors objected to, and, if it was discovered after such finding, to file a plea in abatement. That rule is generally applicable in this country. Crowley v. United States, 194 U.S. 462, 24 Sup.Ct. 731, 48 L.Ed. 1075. The Supreme Court of the United States, when reviewing a criminal conviction in a state court, is bound by the settled law of the state that an objection to an indictment based on the constitution of the grand jury returning the indictment shall be made by plea in abatement, and not by motion to quash. Tarrance v. Florida, 188 U.S. 519, 23 Sup.Ct. 402, 47 L.Ed. 572. In the federal courts, however, where objections to indictments by indicted negroes have been made on the ground that negroes have been excluded from the grand juries because of their race or color, contrary to the provisions of the fourteenth amendment of the Constitution of the United States, motions to quash, accompanied by offers of proof of the facts alleged in the objections, are allowed as substitutes for pleas in abatement. Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567; Charley Smith v. Mississippi, 162 U.S. 592, 16 Sup.Ct. 900, 40 L.Ed. 1082; Williams v. Mississippi, 170 U.S. 213, 18 Sup.Ct. 583, 42 L.Ed. 1012; Martin v. Texas, 200 U.S. 316, 26 Sup.Ct. 338, 50 L.Ed. 497. In United States v. Gale, 109 U.S. 65, 3 Sup.Ct. 1, 27 L.Ed. 857, it was said that, though the general rule as to the manner in which objection may be taken to the personnel of the grand jury is by challenge or by plea in abatement, in this country a motion to quash the indictment may be made instead of pleading specially in abatement, and in Carter v. Texas, 177 U.S. 442, 20 Sup.Ct. 687, 44 L.Ed. 839, it was said that, when the defendant has had no opportunity to challenge the grand jury which found the indictment against him, the objection to the constitution of the grand jury may be taken either by plea in abatement or motion to quash before pleading in bar.

But in the present case the motion to quash was founded wholly on the defects alleged to appear on the face of the indictment. The refusal to quash could not finally determine any right of the defendant. Where an indictment is on its face manifestly defective in substance, and not in mere form, the motion to quash will usually be granted. But the motion, even in such a case, is not granted ex debito justitiae. It may be overruled, and the defendant be compelled to resort to his other remedies, such as demurrer, motion to direct a verdict, or motion in arrest of judgment. The first assignment of error is overruled.

The second assignment is based on an exception to the action of the trial court in overruling the defendant's demurrer to the indictment. At common law, where the indictment charged a felony, which was punishable with death, the defendant was allowed to plead over after his plea in abatement was found against him or after his demurrer was overruled, or even to demur and plead over at the same time.

This privilege was allowed in favorem vitae, and did not formerly apply to cases where life was not in jeopardy. In misdemeanors no pleading over was allowed. In such cases, if the defendant's plea in abatement was found against him, or his demurrer was overruled, final judgment was entered against him. This was because by his plea in abatement he elected to stand on the defense made by it, and by his demurrer he admitted the facts pleaded in the indictment. 2 Hale's P.C. 257; The King v. Gibson, 8 East. 107; Reg. v. Faderman, 3 Car. & K. 353. Later cases allowed the same privilege in misdemeanors. The Queen v. Adams, 1 Car. & M. 299; Reg. v. Purchase, 1 Car. & M. 617. Mr. Bishop (2 Bish.Crim.Proc. § 784) says that 'with us, in misdemeanor, the judgment against a defendant on his demurrer is final, unless he has leave to withdraw it or answer. ' The record of the present case shows that after the demurrer had been overruled the defendant was arraigned and pleaded 'not guilty.' The court, therefore, instead of entering final judgment on the demurrer, allowed the defendant to plead over. The court granted an exception to its action in overruling the demurrer, but, when the defendant pleaded 'not guilty,' the demurrer was, in legal effect, withdrawn from the record, and nothing remained upon which the exception could be founded. The overruling of a demurrer, like the overruling of a motion to quash, settles finally no question against the defendant, except where final judgment is entered on the demurrer. As a demurrer addresses itself to defects apparent on the face of the indictment, a ruling of the trial court on such defects may be had upon the trial by a motion to direct a verdict for the defendant, or, if the alleged defects be not mere defects or imperfections of form (Rev. St. Sec. 1025 (U.S. Comp. St. 1901, p. 720)), or defects which are cured by verdict, by a motion in arrest of judgment, for, generally, whatever is fatal on demurrer is equally so on a motion in arrest of judgment (2 Bish.Crim.Proc. § 1286). We understand this to be the correct practice except in those jurisdictions where by statute defects apparent on the face of an indictment are required to be taken by demurrer or motion to quash before pleading, in order to avoid a waiver thereof, and where, in overruling the demurrer or motion to quash, the defendant may enter an exception on the record on which, in case of subsequent conviction and final judgment against him, he may assign error. Congress has passed no such statute. There are cases in which federal appellate courts have considered assignments of error on the overruling of demurrers to indictments where defendants have been allowed to plead over and go to trial. Endleman v. United States, 86 F. 456, 458, 30 C.C.A. 186, McGregor v. United States, 134 F. 187, 194, 69 C.C.A. 477, and Dillard v. United States, 141 F. 303, 72 C.C.A. 451, are three of such cases. In them, however, the question now considered was not mooted.

In the present case there was a motion for a new trial. The first two reasons on which the motion was based were the refusal of the court to quash the indictment and the overruling of the demurrer. In his opinion on the motion the learned trial judge said: 'The reasons for which a new trial is now urged are 33 in number, the first 2 of which, however, are more properly questions to be considered on a motion in arrest of judgment, and, as they are filed in due time, they may be so considered in this case.'

They were so considered, and the conclusion was that 'the motion in arrest of judgment is overruled and a new trial refused. ' The second error assigned, however, is not that the court erred in overruling the demurrer and refusing to arrest the judgment, as was the case in Evans v. United States, 153 U.S. 584, 14 Sup.Ct. 934, 38 L.Ed. 830, but merely that it erred in overruling the demurrer. Nevertheless, as under the eleventh rule of this court we may reverse for a plain error not assigned, and as the reasons on which the second assignment are based have been fully argued, we have examined them, and are of the opinion that the indictment was not demurrable for any of the reasons set forth, and that the motion in arrest of judgment was properly refused on the grounds stated in the opinion of the trial judge.

The third assignment is that the court erred in admitting certain evidence of the cashier of the bank. It was a part of the evidence designed to show that the board of directors of the bank had no knowledge prior to April 10, 1906, of the defendant's overdrafts. It was properly...