Irving v. United States

• Decision Date: 19 October 1931
• Docket Number: No. 6504.,6504.
• Citation: 53 F.2d 55
• Parties: IRVING v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

53 F.2d 55 (1931)

IRVING v. UNITED STATES.

No. 6504.

Circuit Court of Appeals, Ninth Circuit.

October 19, 1931.

Wm. J. Fellows, of Phœnix, Ariz., for appellant.

John C. Gung'l, U. S. Atty., of Tucson, Ariz., and J. S. Wheeler, Asst. U. S. Atty., of Phœnix, Ariz., for the United States.

Before WILBUR and SAWTELLE, Circuit Judges, and JAMES, District Judge.

JAMES, District Judge.

The appellant was found guilty of three offenses charged in separate counts of the indictment, all being for the alleged violation of the National Prohibition Act (27 USCA). He appealed from the judgment as entered following his conviction.

In the statement of assignment of errors contained in the printed record, appellant has in the main referred to rulings of the court made during the course of the trial as to the admission and rejection of evidence, none of which assignments meets the conditions prescribed by the rules of this court; this particularly in that the requirement is not observed that he "quote the full substance of the evidence admitted or rejected." Rule 11. Also, the specifications intended to present for review the alleged errors in the instructions of the court totally fail to satisfy the further condition of the rule adverted to, which declares: "When the error alleged is to the charge of the court, the assignment of errors shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused."

And the rule concludes: "When this is not done, counsel will not be heard, except at the request of the court; and errors not assigned according to this rule will be disregarded, but the court, at its option, may notice a plain error not assigned."

Rules of practice as prescribed by the court, and as they relate to the manner in which alleged errors shall be pointed to, are intended to limit and define the particular questions to be considered by the court, so that the merits of an appeal may be quickly arrived at and time saved in the examination of the case. These rules are plainly written and easily understood. Similar provisions respecting specifications of errors have been generally adopted by federal appellate courts. An observance of their requirements is generally enforced. In the exceptional case only, in the absence of proper specification, and with the object of preventing injustice to result to an appellant, the court will, under the option reserved in rule 11, "notice a plain error not assigned." See Robinson et al. v. U. S., 33 F.(2d) 238 (decision of this court); Sellars v. U. S., 9 F. (2d) 244 (C. C. A. 8th); Gray v. U. S., 14 F.(2d) 366 (C. C. A. 8th); Gerk v. U. S., 33 F.(2d) 485 (C. C. A. 8th); Fullerton v. Government of Canal Zone, 8 F.(2d) 968 (C. C. A. 5th); Marin v. U. S., 10 F.(2d) 271 (C. C. A. 6th). And it may be observed that prejudice is not inferred from mere error, and that the burden is always upon an appellant to show that he has suffered damage in his case. 28 USCA § 391; Robilio v. U. S. (C. C. A.) 291 F. 975, 981. In the opinion in the case named, the Circuit Court of Appeals for the Sixth Circuit said: "It has more than once been held that reversal will not be had for erroneous action on the trial where the evidence clearly shows, or is convincing, that plaintiff in error was guilty." Citing Horning v. District of Columbia, 254 U. S. 135, 41 S. Ct. 53, 65 L. Ed. 185; Carpenter v. U. S., 280 F. 598 (C. C. A. 4th).

It is then to be considered as to whether, upon an examination of the record in this case, such manifest and prejudicial error appears as to warrant the conclusion that the conviction of the appellant was unfairly obtained. And it does not appear that such was the result of the trial. Appellant was charged, first, with having at a specified time possessed approximately one gallon of whisky; second, with having sold the same quantity of whisky; third, with having transported in an automobile the same quantity of whisky; it being charged in each count that the liquor was fit for beverage purposes. Two federal enforcement agents had arranged that one Roberts should at a certain time buy from the appellant a gallon of whisky. At the time the whisky was to be delivered, the agents were at Roberts' house. The appellant first called at the house, and, after talking with Roberts for a few moments, departed and returned shortly in an automobile with a paper parcel, which he took into Roberts' house. In the parcel was a jug. Roberts paid the appellant $10, and was assured by appellant that it was "good stuff." The two agents were placed where they could overhear the conversation and observe the delivery. After the money was passed, they emerged and placed the appellant under arrest. One of the agents testified that appellant said: "You have got me this time." Another of the agents remarked to appellant "Yes, Tom, we told you some time ago if you didn't quit this we were going to get you," to which appellant replied: "Yes, you did, Jimmy." Two of the agents...