Isbell v. United States

• Decision Date: 13 November 1915
• Docket Number: 4279.
• Parties: ISBELL v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

227 F. 788

ISBELL v. UNITED STATES.

No. 4279.

United States Court of Appeals, Eighth Circuit.

November 13, 1915

(Syllabus by the Court.

A request by a defendant at the close of the evidence for a directed verdict in his favor presents to the trial court for decision the question of law whether or not there is any substantial evidence to sustain a verdict against him, and no farther specification to the trial or the appellate court of the basis of the request is requisite to a review by the appellate court of the refusal of the request on the ground that there was no such evidence.

Evidence of facts as consistent with innocence as with guilt is insufficient to sustain a conviction. Unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt, it is the duty of the trial judge to instruct the jury to return a verdict for the accused; and where all the substantial evidence is as consistent with innocence as with guilt, it is the duty of the appellate court to reverse a judgment against him.

Introducing intoxicating liquor into that part of Oklahoma that was formerly the Indian Territory from without the state, in violation of Act March 1, 1895, c. 145, 28 Stat. 693. Evidence considered, and held insufficient to sustain a conviction.

William P. Thompson, of Vinita, Okl., for plaintiff in error.

D. H Linebaugh, U.S. Atty., of Muskogee, Okl., and George Miller Jr., Asst. U.S. Atty., of Eufaula, Okl.

Before SANBORN and CARLAND, Circuit Judges, and LEWIS, District Judge.

SANBORN Circuit Judge.

The defendant below, Thomas Isbell, was indicted, convicted, and sentenced to imprisonment for two years and to pay a fine of $100 for introducing from without the state of Oklahoma into that portion of that state which was formerly the Indian Territory one quart of whisky and wine in violation of the Act of Congress of March 1, 1895, 28 Stat. c. 145, p. 693. He assigns as error, among other things, that the court below refused his request, at the close of all the evidence, that it instruct the jury to return a verdict in his favor.

Counsel for the United States meet this complaint with the contention that it presents no question for review because defendant's counsel failed to state any specific ground or reason for a directed verdict in his favor and quote these words as from the opinion of this court in Horn v. United States, 182 F. 721, 105 C.C.A. 163:

'Where no ground is assigned in the trial court as a basis for the direction of an acquittal, an assignment based on the overruling of the request therefor may be disregarded on appeal.'

A careful reading of that opinion, however, fails to disclose that statement, or any decision to that effect. What was said on that subject was in these words:

'At the close of all the testimony, each of the defendants requested the court to direct the jury to return a verdict in his favor, which request was denied and an exception saved. No ground was assigned, or suggestion made, as a basis for this request. The assignment of error based upon this ruling is that the court erred in overruling this request. The attention of the trial court not having been called to any ground upon which the request was made, this assignment might well be disregarded for this reason alone. It is urged, however, in behalf of each defendant, that there is no testimony that would warrant a verdict against him, or sustain one if found, and that a verdict should have been directed in his favor for this reason. In view of this the testimony has been considered.'

The court then proceeded through seven printed pages to state and review the testimony and declared its conclusions in these words:

'A careful and patient consideration of the entire testimony, in the light of the objections urged against its sufficiency forces the conclusion that it would have been error to have withdrawn it from the consideration of the jury, and that it is amply sufficient to sustain the verdict against each of the defendants. There was no error, therefore, in denying the requests for an instructed verdict in their favor. ' Horn v. United States, 182 F. 721, 730-737, 105 C.C.A. 163.

Thus it appears that the court did not consider, determine, and adjudge that an assignment of error based on the overruling of a request for a directed verdict might be disregarded on appeal where no ground for the request was assigned in the trial court, and it did not base its judgment against the plaintiffs in error upon that ground. On the other hand, it considered the alleged error in denying the requests, defeated the plaintiffs in error on the ground that the requests were rightfully refused, and its remark that, 'the attention of the trial court not having been called to any ground upon which the request was made, this assignment might well be disregarded for this reason alone,' was not a decision of the question it suggests on which the judgment of the court in any degree rested, but a mere dictum, which, in the felicitous language of Chief Justice Marshall, 'ought not to control the judgment in a subsequent suit when the very point is presented for decision. ' Cohens v. Virginia, 6 Wheat. 264, 398, 5 L.Ed. 257; King v. Pomeroy, 121 F. 287, 294, 58 C.C.A. 209. That remark is not, therefore, controlling in this case, in which the very point must necessarily be decided, and we proceed to its consideration.

At the close of the evidence in every trial by jury the question of law, not whether the weight of the evidence sustains the claims of the plaintiff or the defendant, but whether or not there is any substantial evidence to sustain the claim of the plaintiff, necessarily and unavoidably arises, and the duty rests upon the trial court to direct a verdict for the defendant if there is no such evidence. Brady v. Chicago G.W. Ry. Co., 114 F. 100, 105, 52 C.C.A. 48, 52, 53, 57 L.R.A. 712; Cole v. German Savings & Loan Soc., 124 F. 113, 121, 122, 59 C.C.A. 593, 601, 602, 63 L.R.A. 416; St. Louis Cordage Co. v. Miller, 126 F. 495, 508, 61 C.C.A. 477, 490, 63 L.R.A. 551; Chicago Great Western Ry. Co. v. Roddy, 131 F. 712, 713, 65 C.C.A. 470, 471; Western Union Tel. Co. v. Baker, 140 F. 315, 319, 72 C.C.A. 87, 91; First Nat. Gold Min. Co. v. Altvater, 149 F. 393, 397, 79 C.C.A. 213, 217; Missouri Pac. Ry. Co. v. Oleson, 213 F. 329, 330, 130 C.C.A. 31, 32.

A request by the defendant for a directed verdict as necessarily and unavoidably presents this question of law to the mind of the trial judge for decision and to the mind of every lawyer within hearing of the request. No statement to the court that the ground of it is the absence of substantial evidence to sustain the plaintiff's cause of action could call that ground more forcibly to its attention than the request itself, because that is the ground which first occurs to the mind and on which such a request is ordinarily based. It has been the practice of this court and of other appellate courts for many years to treat a request for a directed verdict for a defendant, without more, as a sufficient specification of the ground that there was no substantial evidence to sustain a verdict for the plaintiff and to review refusals to grant such requests. Chicago, Milwaukee & St. Paul Ry. Co. v. Bennett, 181 F. 799, 801, 104 C.C.A. 309, 311; Hedderly v. United States, 193 F. 561, 571, 114 C.C.A. 227, 237; Atchison, Topeka & S.F. Ry. Co. v. Meyers, 76 F. 443, 444, 447, 22 C.C.A. 268, 269, 272; Wiborg v. United States, 163 U.S. 632, 658, 16 Sup.Ct. 1127, 1197, 41 L.Ed. 289.

Indeed, this court has gone so far as to sustain a directed verdict for the defendant on this ground, although it was not specified, and the verdict was directed on a specified, but untenable, ground, and that for the reason that the question of law whether or not there is any substantial evidence to sustain a verdict for the plaintiff always arises at the close of the evidence. Bank of Havelock v. Western Union Telegraph Co., 141 F. 522, 526, 527, 72 C.C.A. 580, 4 L.R.A. (N.S.) 181, 5 Ann.Cas. 515. For these reasons the conclusion is that a request by a defendant at the close of the evidence for a directed verdict in his favor presents to the trial court for decision the question of law whether or not there is any substantial evidence to sustain a verdict against him, and no farther specification to the trial or to the appellate court of the basis of the request is requisite to a review by an appellate court of the refusal of the request on the ground that there was no such evidence.

Was there any substantial evidence that the defendant introduced whisky or wine into that portion of Oklahoma which was formerly the Indian Territory from without that state? There was substantial evidence of these facts: Isbell was the owner of drays and teams engaged in the transportation of goods at Vinita, in Oklahoma, and had been for many years. One Hostetler came to him with a bill of lading marked 'HH,' which usually means household goods, and told him he had a load of household goods at Chetopa, Kan., which he wanted hauled to Tiff City, Mo. It was conceded at the trial that the transportation of intoxicating liquors from Chetopa across the part of Oklahoma that was formerly the Indian Territory to Tiff City would not be a violation of the act of 1895, and the court so instructed the jury. Isbell took the bill of lading and agreed to haul the goods to Tiff City. His teams were in use, and he hired a team of one Newman, and employed one Silvey to drive the team and take the goods from Chetopa to Tiff City. Silvey obtained the team, took the bill of lading to Chetopa, loaded the goods and was hauling them to Tiff City, across Oklahoma, by way of Vinita, when he was arrested by deputy marshals, and...