Hindman v. United States

• Decision Date: 11 October 1923
• Docket Number: 3795.
• Citation: 292 F. 679
• Parties: HINDMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

292 F. 679

HINDMAN v. UNITED STATES.

No. 3795.

United States Court of Appeals, Sixth Circuit.

October 11, 1923

Ralph Davis, of Memphis, Tenn., for plaintiff in error.

W. H Fisher, of Memphis, Tenn. (S. E. Murray, U.S. Atty., and A A. Hornsby, Asst. U.S. Atty., both of Memphis, Tenn., on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

KNAPPEN Circuit Judge.

This writ is to review conviction of plaintiff in error upon an indictment under section 39 of the Penal Code, charging bribery of Tyree Taylor, as deputy United States marshal. The case belongs to the general group which includes the Tuckerman (No. 3791), Wilkes (No. 3810), Berryman (No. 3826) and Wallace (No. 3800) bribery cases (291 F. 958, 972), as well as the conspiracy cases of Robilio et al. (No. 3792) and Wilkes et al. (No. 3783), all decided June 29th last (291 F 975, 988), as well as the bribery case of Wolf v. United States (No. 3772) 292 F. 673, this day decided. The indictment charges plaintiff in error with having promised, offered, and given $200 to Tyree Taylor, then and there a deputy United States marshal for the Western district of Tennessee, with intent to induce Taylor, as such officer, to connive with defendant in his proposed transporting and causing to be transported in interstate commerce from another state into Shelby county, Tenn., certain intoxicating liquors for other than scientific, sacramental, medicinal, or mechanical purposes, in violation of the laws of the United States; Taylor to aid, assist, and protect defendant in such transportation, and to fail, refuse, and omit to report to the United States marshal or to the United States attorney, at Memphis, Tenn., the fact of such transportation by defendant and his agents, all in violation of the laws of the United States and the duty of such officer to apprehend defendant and his agents, if caught in the act of violating such federal laws, and of the duty of such deputy marshal to report to the United States marshal or to the United States district attorney, at Memphis, Tenn., any violation of the federal statutes of which he had knowledge.

Plaintiff in error complains of the denial of his application for a bill of particulars, and in connection therewith discusses an alleged variance between the indictment and the proofs, with respect to the date and manner of payment of the $200 in question, in this: That the indictment charges the payment 'on or about the 7th day of May, A.D. 1919,' in 'good and lawful money of the United States,' while the proofs show a payment of $200 about the middle of April, 1919, made one-half in currency and the remaining one-half by bank draft, delivered with the currency mentioned. If plaintiff in error desired further particulars as to the date and method of payment, it was proper practice to ask a bill of particulars thereof. Dierkes v. United States (C.C.A. 6) 274 F. 74, 79, and numerous decisions of the Supreme Court there cited; Rudner v. United States (C.C.A. 6) 281 F. 516, 518. The record, however, contains no information as to the respect in which the bill of particulars was asked. The motion is not in the record, nor do we find any mention of it, except in the entry overruling 'motion heretofore filed for a bill of particulars. ' No question of variance seems to have been raised until its inclusion as ground of a motion made at the close of the testimony for direction of verdict in defendant's favor. In view of this record, and the general rule that a motion for bill of particulars is addressed to the sound discretion of the trial court, whose denial thereof is ordinarily not reviewable (Savage v. United States (C.C.A. 8) 270 F. 14, 18, 19, and cases there cited), we are not at liberty to assume the existence of error in such denial. Were we to assume that, had the proof shown a payment entirely by bank draft, a technical variance would appear, we cannot so assume, much less assume prejudicial error, where the proof shows payment of $200, one-half in cash and one-half in bank draft, delivered at one and the same time.

There was demurrer to the indictment upon the same grounds presented in the Wolf Case (No. 3772, C.C.A.) 292 F. 673, also challenges to the array and to the panel of jurors for the identical reasons urged in that case. The indictment in the instant case was in all material respects the same as in the Wolf Case except as to date and amount of alleged payment. For the reasons stated in our opinion in that case, we find no error in the action of the court in overruling the demurrer, or in denying the motion in arrest of judgment, and in refusing to sustain the challenges, for the reasons generally that the members of both panel and array had acted as jurors in one or another of the Tyree Taylor cases (or had been in court during the trials), had heard the evidence of Taylor and his wife, and so could not now give to the defendant a fair and impartial trial, because their minds must of necessity be prejudiced against defendant after hearing the testimony of Taylor and his wife, and the court's expression of his belief in the truth thereof, as more fully set forth in our opinion in the Wolf Case, supra.

In our opinion there was no error in refusing to direct verdict for defendant, on the ground of lack of substantial evidence of the...