Johnson v. United States

Citation32 F.2d 127
Decision Date04 April 1929
Docket NumberNo. 8260.,8260.
PartiesJOHNSON v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

John W. Tillman, Fred A. Tillman, Welcome D. Pierson, and T. J. Leahy, all of Pawhuska, Okl., J. H. Maxey, of Tulsa, Okl., C. S. Macdonald, of Pawhuska, Okl., and Charles A. Holden, of Tulsa, Okl., for appellant.

John M. Goldesberry, U. S. Atty., of Tulsa, Okl.

Before KENYON, Circuit Judge, and FARIS and SANBORN, District Judges.

FARIS, District Judge.

Appellant by this appeal, seeks to reverse a sentence of imprisonment in the penitentiary and for the payment of certain fines imposed upon him on his conviction (a) for possessing whisky in the Indian country, and (b) for a sale of whisky in violation of the National Prohibition Act.

Objection was made by demurrer, and is here insisted upon, that so much of the indictment as sets forth the place of the offense, to wit, "about ten miles northeast of the City of Pawhuska, Osage County, State of Oklahoma, a more definite description of the exact place where said liquor was so had, kept and possessed being to the grand jurors unknown," is bad, for that it does not sufficiently inform defendant of the charge against him.

Appellant filed an application for a continuance, on the ground of the absence of two certain witnesses. The trial was set, and had for some time been set, for May 9, 1928. On May 8, 1928, about noon, a subpœna was sued out by appellant for the two witnesses in question and the marshal was advised that they resided, or could be found at a place called Shidler, some 25 miles from the place of trial. Efforts were at once made by a deputy marshal and a deputy sheriff to find these witnesses at the place of their alleged residence, and at another town in the vicinity. But they could not be found, nor could any one be found, after much inquiry, who knew them or had ever heard of them. The motion for a continuance was overruled and defendant is here inter alia, still complaining of the fact.

After the jury retired to deliberate upon their verdict, and after they had for some time considered the case, they came in and through their foreman asked to be further instructed on the point whether they could consider circumstantial evidence for the purpose of corroboration. The court in a further charge instructed them that they could resort to the circumstances proven in the case for the purpose of corroboration. He also repeated a part of his charge as to the manner in which they should weigh the testimony of all witnesses, and then finally proceeded to sum up the salient facts in evidence on both sides. This he had not done in any manner or degree, in the original charge. Taken as a whole, the summary was eminently fair to both appellant and the government. Appellant saved his exception to this charge of the court; because of an alleged erroneous definition of direct evidence, and because of a "reiteration of the credibility of the witnesses" (sic), and because the court again reviewed the testimony. In passing, it may be said that the definition of direct evidence was correct, and there had been in the original charge, as said already, not a single mention of the facts in evidence.

After verdict, appellant set up, in a motion for a new trial the alleged newly discovered evidence of one Peter McWhirt and one Ed. Talley. McWhirt had been subpœnaed by the government, but was not called as a witness, though inferentially, he was present in court throughout the trial. Talley, in his affidavit, claims he was present at the time and place when and whereat the alleged sale of whisky was made. McWhirt was so present, as both sides concede. Appellant admits the presence of Baker, the alleged vendee of the liquor, at the time and place of alleged sale, and admits that he accepted money from such vendee for liquor which he agreed to deliver, but, as he says, did not deliver. So, if Talley and McWhirt were present, appellant had known such fact for more than a year before the trial.

Many objections were made on the trial, and some three or four of these are now yet urged, as to alleged errors in the admission of evidence. These have been carefully examined, but they and each of them are wholly trivial, and therefore time and space need not be occupied in either reciting or discussing them.

If the jury believed the evidence, as the result discloses they must have done, there is no doubt of appellant's guilt, and of the correctness upon this question of the verdict. There was but one witness as to the fact of sale, but there was corroboration by the finding on the person of appellant after his arrest of marked money said to have been used in the purchase. Appellant, as the situation compelled him to do, admitted taking the money from Baker the alleged vendee, but, as hinted already, sought to explain his possession of the money by the statement, that he accepted the money for whisky he agreed to obtain from others, and which, when so obtained, was to be delivered to Baker. There was some corroboration also arising from the proof of physical facts. But, since there is no serious attack now made on the sufficiency of the evidence we need not belabor the point.

We are of the opinion that the indictment was sufficient. Swafford v. United States (C. C. A.) 25 F.(2d) 581; Myers v. United States (C. C. A.) 15 F.(2d) 977; Flack v. United States (C. C. A.) 272 F. 680.

Appellant's application for a continuance, failed to disclose any diligence in suing out the subpœna for these absent witnesses, and the uncontradicted, oral evidence discloses that there had been no sufficient diligence. Moreover, there is not in the application for a continuance any showing of any fact to indicate that at any future day which might have been set for the trial of the case the...

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  • Bloodsworth v. State
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1987
    ...and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal." Johnson v. United States, 32 F.2d 127, 130 [8th Cir.1929]. See also Mills v. United States, 281 F.2d 736, 738 [4th It is essentially the function of the trial judge to evaluate a......
  • Andresen v. State
    • United States
    • Court of Special Appeals of Maryland
    • January 10, 1975
    ...such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.' Johnson v. United States, 8 Cir., 32 F.2d 127, 130 . . It is essentially the function of the trial judge to evaluate and assess the newly discovered evidence and where such......
  • Jackson v. State
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    • Court of Special Appeals of Maryland
    • October 6, 2005
    ...governing motions for a new trial. In Jones v. State, 16 Md.App. at 477, 298 A.2d 483, we quoted with approval from Johnson v. United States, 32 F.2d 127, 130 (8th Cir.1929), for the proposition that to qualify as newly discovered evidence, the "evidence... must not be merely cumulative or ......
  • United States v. Messerlian
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    ...110 n. 4, 66 S.Ct. 464, 466 n. 4, 90 L.Ed. 562 (1946). The Third Circuit borrowed its formulation of this rule from Johnson v. United States, 32 F.2d 127, 130 (8th Cir.1929), see United States v. Rutkin, 208 F.2d 647, 649 (3d Cir.1953); United States v. Howell, 240 F.2d 149, 159 (3d Cir. 19......
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