Jackson v. United States, 5277.

• Decision Date: 28 August 1934
• Docket Number: No. 5277.,5277.
• Citation: 72 F.2d 764
• Parties: JACKSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

72 F.2d 764 (1934)

JACKSON v. UNITED STATES.

No. 5277.

Circuit Court of Appeals, Third Circuit.

August 28, 1934.

D. James Farage, of Philadelphia, Pa., for appellant.

Herman F. Reich, of Sunbury, Pa., and Andrew B. Dunsmore, U. S. Atty., of Wellsboro, Pa.

Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.

PER CURIAM.

The appellant, hereinafter called defendant, was sentenced on June 6, 1933, on a plea of guilty to 4 years each on the first three counts of the indictment to run consecutively, and sentence was suspended on the thirty-six remaining counts.

On September 8, 1933, defendant filed his appeal on the ground that "the court erred in sentencing him to four years each on the first three counts to run consecutively and on the further ground that the sentence was excessive."

The defendant pleaded guilty to the embezzlement of $174,441.96, and the maximum penalty to which he could have been sentenced on the indictment was 195 years. The sentence, therefore, as such, is not excessive, and a sentence that is within the maximum penalty is within the discretion of the trial court and is not reviewable on appeal. Camarota v. United States, 2 F.(2d) 650 (C. C. A. 3); Scala v. United States, 54 F.(2d) 608, 611 (C. C. A. 7); Kopp v. United States, 55 F.(2d) 878 (C. C. A. 7); Kachnic v. United States (C. C. A.) 53 F.(2d) 312, 79 A. L. R. 1366.

Again, no motion in arrest of judgment was made and no bill of exceptions was filed. The following was the only assignment of error: "The court erred in sentencing the defendant to terms of four years each beginning June 6, 1937, and June 6, 1941, respectively, on the second and third counts of the indictment. The court erred in imposing an excessive sentence."

The defendant is a lawyer, and was, in addition, represented by competent counsel, and the appeal should be dismissed on the ground that there are no exceptions on which to base the assignment of error made and the others argued, but not assigned.

The statute under which the appellant was prosecuted provides: "A person shall be punished by imprisonment for a period of not to exceed five years upon conviction of the offense of having knowingly and fraudulently appropriated to his own use, embezzled, spent, or unlawfully transferred any property or secreted or destroyed any document belonging to a bankrupt estate which came into his charge as trustee, receiver, custodian, or other officer of the court." 11 U. S. C. § 52 (a), 11 USCA § 52 (a).

The indictment charges that appellant embezzled the money of the bankrupt estates in question, which came into his charge as attorney for the trustee and as custodian thereof. If defendant was guilty, it was for embezzling as trustee, receiver, or custodian of the funds in question. He was not trustee or receiver. He says that he was not custodian, but he pleaded guilty to that charge, and entered no objection or exception either before or at the time sentence was imposed, and a trial judge cannot be convicted of error which has never been raised before him, and upon which he has never passed. Dower v. Richards, 151 U. S. 658, 663, 14 S. Ct. 452, 38 L. Ed. 305; Behn, Meyer & Co. v. Campbell & Go Tauco, 205 U. S. 403, 27 S. Ct. 502, 51 L. Ed. 857.

The first and second counts charge that the money in question therein came into the charge of the appellant as custodian thereof, while the third count charges that the money came into his charge "as trustee" of the estate of "Reese-Sheriff Lumber Co."

The defendant says that he was not a "custodian" within the meaning of the act under which he was indicted, and that, while the act does not define the term, it seems never to have been used except in reference to officers of bankruptcy courts.

It is true...