De Jianne v. United States

• Citation: 282 F. 737
• Decision Date: 06 September 1922
• Docket Number: 2890.
• Parties: DE JIANNE v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

282 F. 737

DE JIANNE v. UNITED STATES.

No. 2890.

United States Court of Appeals, Third Circuit.

September 6, 1922

George E. Cutley, of Jersey City, N.J., for plaintiff in error.

Richard C. Plumer, of Newark, N.J., for the United States.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS Circuit Judge.

The plaintiff in error, hereinafter called defendant, was convicted on a criminal information containing five counts four of which charged him with selling, and the fifth with having in his possession, intoxicating liquor, in violation of the National Prohibition Act (41 Stat. 305). He was sentenced to six months' imprisonment on second count and to a fine of $500 on each of the other four counts making in all $2,000.

The defendant insists that the learned District Judge erred in his charge to the jury, in that he virtually directed a verdict of guilty, and that he was without jurisdiction to sentence defendant on conviction to imprisonment on the crimes, charged in criminal information rather than indictment. In charging the jury on the fifth count the judge said:

'On the question of the fifth count, the matter of the possession of liquors, there does not seem to be any possible defense for that. There is no evidence here that the defendant declared this liquor. Under the act, he was required to do that, if he wanted to hold it legally; but there is no evidence that he did.'

The alleged error is based upon the ground that in a criminal case the trial judge may not direct the jury to find the defendant guilty, and the language used in this case was a virtual direction to do so, and further there was testimony that the defendant had taken some action toward reporting the liquor.

At the close of the charge, the trial judge asked counsel for defendant if he had any exceptions to the charge, and he replied, 'No exceptions.' Subject to certain exceptions (where the court is without jurisdiction on account of lack of proper parties, Chapman v. Barney, 129 U.S. 677, 9 Sup.Ct. 426, 32 L.Ed. 800; requisite amount involved, Cochran v. Childs, 111 F. 433, 49 C.C.A. 421; authorized place where trial was held, Armstrong v. Loveland, 99 A.D. 28, 90 N.Y.Supp. 711; or in criminal cases, where the life or liberty of citizens is at stake, and gross errors are made which are seriously prejudicial and result in the miscarriage of justice, Wiborg v. United States, 163 U.S. 632, 658, 16 Sup.Ct. 1127, 1197, 41 L.Ed. 289; Crawford v. United States, 212 U.S. 183, 194, 29 Sup.Ct. 260, 53 L.Ed. 465, 15 Ann.Cas. 392; Weems v. United States, 217 U.S. 349, 362, 30 Sup.Ct. 544, 54 L.Ed. 793, 19 Ann.Cas. 705), not here involved, it is a rule of law of almost universal application that questions not raised and properly preserved in the trial court for review will not be considered on appeal. Any other rule would be unfair to the trial judge. One of the objects of an exception is to call his attention to the precise point in which he is supposed to have erred, in order that he may then and there consider it, and change his ruling or instruction, if he thinks, in the light of an objection, that he should do so (Beaver v. Taylor, 93 U.S. 46, 55, 23 L.Ed. 797), so that cases may not be considered and disposed of by the appellate court upon questions not brought to the attention of the trial judge, but evolved from the record by mature study of astute counsel (Robinson & Co. v. Belt, 187 U.S. 41, 55, 23 Sup.Ct. 16, 47 L.Ed. 65).

These cases were decided prior to Act Feb. 26, 1919, c. 48, 40 Stat. 1181, amending section 269 of the Judicial Code (Comp. St. Ann. Supp. 1919, Sec. 1246). That act provides that:

'On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.'

We cannot assent to the proposition that the act 'commands' (August v. United States, 257 F. 388, 168 C.C.A. 428) us to consider questions raised for the first time on appeal. The purpose of the act is the due administration of substantial justice. It accordingly conferred upon courts the statutory right to consider plain errors not assigned or specified. This act is simply declaratory of the right preserved in rule No. 21 of the Supreme Court and in the rules of courts generally. In Frey & Son, Inc., v. Cudahy Packing Company, (decided April, 1921) 256 U.S. 208, 41 Sup.Ct. 451, 65 L.Ed. 892, the Supreme Court disposed of the case on a point not raised below, without any mention whatever of the act and Mr. Justice Pitney, in a dissenting opinion in which Mr. Justice Day and Mr. Justice Clarke concurred, admirably stated the law on this subject as follows:

'It is elementary that, in order to lay foundation to review by writ of error the proceedings of the courts of the United States in the trial of common-law actions, the questions of law proposed to be reviewed must be raised by specific, precise, direct, and unambiguous objections, so taken as clearly to afford to the trial judge an opportunity for revising his rulings, and that a bill of exceptions not fulfilling this test will furnish no support for an assignment of error.'

But, had exceptions been duly taken to the language, we think it was without error. In criminal cases the trial judge may not direct the jury to find the defendant guilty. Sparf & Hansen v. United States, 156 U.S. 51, 105, 715, 15 Sup.Ct. 273, 39 L.Ed. 343. But he may sum up the facts and express his opinion upon them, if he leaves their ultimate determination to the jury and does not misstate any rule of law. Starr v. United States, 153 U.S. 614, 624, 14 Sup.Ct. 919, 38 L.Ed. 841. In this case, he did not direct the jury to find the defendant guilty. He merely expressed his opinion of the evidence, but allowed the jury finally to determine the facts. He concluded his charge with this paragraph, immediately following the language of which complaint is made:

'Upon the whole case, it is simply a matter, gentlemen, of where the truth is. As I say to you, the defendant is entitled to the benefit of a reasonable doubt, and if you find any in this case for him on any one of those counts, why acquit him as to that count. If, however, you are satisfied beyond a reasonable doubt that upon these occasions he made these sales to a federal prohibition agent, and, as testified to, that he took the money, why there is nothing else for you to do but to convict him.'

As to the second assignment of error, the Fifth Amendment to the Constitution of the United States provides that:

'No person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or in public danger.'

An infamous crime is determined by the sentence the court may, and not by the sentence it does, impose, and an offense for which imprisonment in a state prison or penitentiary, with or without hard labor, may be imposed, is an infamous crime, which may be proceeded against by indictment of a grand jury only. Ex parte Wilson, 114 U.S. 417, 428, 5 Sup.Ct. 935, 29 L.Ed. 89; Mackin v. United States, 117 U.S. 348, 6 Sup.Ct. 777, 29 L.Ed. 909; Parkinson v. United States, 121 U.S. 281, 7 Sup.Ct. 896, 30 L.Ed. 959; In re Claasen, 140 U.S. 200, 11 Sup.Ct. 735, 35 L.Ed. 409.

Under the National Prohibition Act, for the...