Holmgren v. United States

• Decision Date: 14 October 1907
• Docket Number: 1,382.
• Citation: 156 F. 439
• Parties: HOLMGREN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

156 F. 439

HOLMGREN v. UNITED STATES.

No. 1,382.

United States Court of Appeals, Ninth Circuit.

October 14, 1907

Marshall B. Woodworth, for plaintiff in error.

Robert T. Devlin, U.S. Atty., Benjamin L. McKinley, Asst. U.S Atty., and Frank A. Duryea, Special Asst. U.S. Atty.

Before GILBERT and ROSS, Circuit Judges, and HUNT, District Judge.

GILBERT Circuit Judge.

The plaintiff in error was indicted for violation of section 5395 of the Revised Statutes (U.S. Comp. St. 1901, p. 3654). The indictment contained three counts; each count charging the plaintiff in error with the commission of perjury when testifying as a witness in three separate naturalization proceedings. He had two trials in the court below. On the first trial he was acquitted on counts 1 and 2, and convicted on count 3. The perjury of which he was convicted on the third count consisted in swearing that he had known in the United States the applicant for citizenship for five years prior to the application; whereas, as alleged in the indictment, he had not known him for more than four years prior to said application. He was granted a new trial, and on the second trial he was convicted under the third count and recommended to the mercy of the court. A motion for a new trial was made and denied. A motion in arrest of judgment was also denied.

One of the errors principally relied upon is that the District Court permitted the jury to take with them, and keep during all of their deliberations in the jury room, the indictment, upon which was indorsed the verdict of the jury on the previous trial, finding the plaintiff in error guilty on the third count of the indictment. This assignment of error cannot avail the plaintiff in error, for the reason that the matter was not brought to the attention of the court at any time until after a verdict was returned; the submission of the indictment with the indorsement thereon to the jury having been an accident for which counsel for plaintiff in error was as much accountable as was any one. Said the Court of Appeals for the Eighth Circuit, in St. Louis S.W. Ry. v Henson, 58 F. 531, 7 C.C.A. 349:

'It is the province of an appellate court to review the rulings of the trial court on questions actually brought to the attention of the court and decided by it.'

And in Manufacturing Co. v. Joyce, 54 F. 332, 4 C.C.A. 368 it was said:

'The rule is well established that the appellate court will only permit those matters to be assigned for error that were brought to the attention of the court below during the progress of the trial and then passed upon.' In Railway Co. v. Heck, 102 U.S. 120, 26 L.Ed. 58, Chief Justice Waite said:

'Our power is confined to exceptions actually taken at the trial. The theory of a bill of exceptions is that it states what occurred when the trial was going on.'

But it is said that the alleged misconduct of the court and its officers, in submitting to the jury the indictment with the indorsement of the former verdict thereon, is ground for reversal in this court under another assignment of error, which is that the trial court denied the motion of plaintiff in error for a new trial. It is shown in the record by affidavits in support of the motion for a new trial that the indictment was delivered by a bailiff to the jury when they retired to consider their verdict, and that there was indorsed thereon:

'Tried April 5-6-7, 1906. Verdict, not guilty on the first and second counts of indictment, and guilty on the third count of the indictment. April 13, 1906. New trial granted.'

The attorney for the plaintiff in error stated in his affidavit that he had no knowledge that the indictment had been handed to the jury, and that, when he saw the deputy clerk hand certain papers to the jury before retiring, he thought they were simply forms of verdict for the jury. There was an affidavit of one of the jurors that during the course of the deliberations of the jury the indictment, with the indorsements thereon, was read by the jury, and the affidavit of another juror to the same effect, with the further statement that in his mind the indorsement on the indictment created an unfavorable opinion against the plaintiff in error. This latter portion of the affidavit was not admissible, for the evidence of jurors as to the influences which affected their deliberations is inadmissible either to impeach or support the verdict. Clyde Mattox v. United States, 146 U.S. 140, 13 Sup.Ct. 50, 36 L.Ed. 917.

Whether the submission to the jury of an indictment upon which a former conviction is recorded is error for which a judgment should be reversed is a question upon which the decisions are not harmonious. In Green v. State, 38 Ark. 304, the court refused to reverse the judgment on that ground.

In 2 Thomp. on Trials, Sec. 2591, it is said:

'It is not enough for counsel to show, in support of a motion for a new trial, that a particular paper was sent to the jury by the adverse party without his knowledge. It is his duty to ascertain what papers are sent to the jury before they leave the court.'

In Forbes v. Commonwealth, 90 Va. 550, 19 S.E. 164, the Supreme Court of Appeals of Virginia held that it was not error to send to the jury the indictment, whereon is recorded the verdict of 'guilty' of a former jury, where no objection is made until after the verdict.

In State v. Shores, 31 W.Va. 491, 7 S.E. 413, 13 Am.St.Rep. 875, the court, in refusing to reverse a judgment on that ground, said:

'The jury had seen the indictment with the indorsement, before any motion was made with reference thereto. Every member of the jury may have been in court and heard the verdict read against Hall, and still that would not have disqualified them as jurors.' In Cargill v. Commonwealth, 93 Ky. 578, 20 S.W. 782, the court said:

'But the appellant made no objection, and it was his business, as well as that of the other side, to see that the proper papers were taken by the jury, and, it not being done, to call the court's attention to it. By proper vigilance upon his part, his rightful objection would have been available to him.'

In State v. Tucker, 52 A. 741, 75 Conn. 201, it was held that the failure to remove the record of the judgment of conviction given to the jury, or to direct them not to regard it, was not prejudicial to the defendant, where no objection was made until after the verdict. The court said:

'It is the duty of counsel, as well as of the court, to ascertain what papers are delivered to the jury.'

In Smalls v. State, 105 Ga. 669, 31 S.E. 571, the court said:

'If a party desires a verdict rendered at a former trial of the same case concealed from the inspection of the jury, he should present a request to this effect.'

In Sanders v. State, 131 Ala. 1, 31 So. 564, the court found no error in giving to the jury the indictment, on which was recorded the verdict of a former jury, and so held on the ground that the statute requires that the indictment should be taken by the jury on their retirement to consider their verdict.

In Hjeronymus v. State (Tex. Cr. App.) 83 S.W. 708, the statute forbade reference to a former trial and conviction or any allusion to it, but the court held that there was no error in the case under consideration, as it was not made to appear that the jury was aware of the existence of the former verdict until after they had agreed to convict, nor was it shown that the former verdict was used by them in arriving at their verdict.

In Harvey v. State, 35 Tex.Cr.R. 535, 34 S.W. 623, the court said:

'In our opinion the weight of the testimony in this regard is to the effect that the jury who tried the case did not notice or read, or attempt to read, the obliterated verdict, and if they had done so, in the absence of some showing of injury to appellant, we could not consider this as fundamental error, or such error as ought to have authorized the court below to grant a new trial.'

In Anschicks v. State, 6 Tex.App. 524, the court said:

'It was the business of counsel to see to it that the jury were permitted to carry with them such papers as were proper to be used in their retirement.'

In Ogden v. United States, 112 F. 523, 50 C.C.A. 380, however, the Circuit Court of Appeals for the Third Circuit held that the fact that, on the retirement of the jury in a criminal case, an officer of the court handed to them the indictments on which the defendant was tried, which were taken into the jury room with other papers for their consideration, and that indorsed on the back of each indictment was the verdict of a former jury finding the defendant guilty as charged therein, was such a violation of the rights of the defendant as to entitle him to a new trial, and that it was not incumbent upon him to show that such indorsements were actually read by the jurors or any of them. In that case the right of the defendant, against whom a verdict of guilty had been rendered on the second trial, to move for a new trial and to have that motion considered on the reasons presented for it, had been denied by the trial court. That right was held to be an absolute one, the granting or refusal of which did not rest in the discretion of the court. Therein lies the important and essential difference between that case and the case at bar. In the Ogden Case, the trial court refused to permit the filing of a motion for a new trial, offered in due time, or to consider it or the affidavits offered in its support. The Circuit Court of Appeals said:

'It is not disputed that in the courts of the United States the allowance or refusal of a new trial rests in the sound discretion of the court to which the application is addressed, and

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