King v. United States

• Decision Date: 05 April 1928
• Docket Number: No. 4889.,4889.
• Citation: 25 F.2d 242
• Parties: KING v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

25 F.2d 242 (1928)

KING v. UNITED STATES.

No. 4889.

Circuit Court of Appeals, Sixth Circuit.

April 5, 1928.

L. H. Graves, of Memphis, Tenn., for plaintiff in error.

Herbert L. Harper, Asst. U. S. Atty., of Memphis, Tenn. (Lindsay B. Phillips, U. S. Atty., and Arthur G. Brode, Asst. U. S. Atty., both of Memphis, Tenn., on the brief), for the United States.

Before DENISON, Circuit Judge, and TUTTLE and HICKENLOOPER, District Judges.

HICKENLOOPER, District Judge.

The plaintiff in error complains of a sentence pronounced June 2, 1926, upon a verdict of guilty returned June 3, 1925. The case was tried at the May, 1925, term of the District Court at Memphis; that is to say, on June 1, 2, and 3, 1925. The district attorney did not move for sentence immediately, and no action was taken upon the verdict prior to the death of the trial judge, which occurred July 9, 1925. The November term commenced November 23, 1925, and motion to set aside the verdict and for a new trial was duly filed November 20, 1925, being thus within term.

The indictment contained four counts, each charging a violation of section 215 of the Penal Code (18 USCA § 338) by placing in the United States mails at Memphis, Tenn., the various letters made the bases of the several counts. Each count submitted to the jury is founded upon correspondence with a separate alleged victim of the scheme to defraud. This scheme is alleged to have consisted of the making by the defendant of willfully false statements of the financial condition of the Contractors' Mill & Lumber Company, of which the defendant was the acting president, for the purpose of inducing the addressees of the letters there set forth "to ship to defendant's said company the goods referred to in said letters, on credit, and thus to assume a greater risk of loss of the value of said goods than the said letters indicated." The second count was withdrawn from the consideration of the jury at the close of the evidence, and a verdict of guilty under the first, third, and fourth counts was returned.

The record is in exceedingly poor shape, and a motion to reverse and dismiss is made upon two grounds: (1) That there is no minute entry upon the records of the District Court showing that the defendant was ever arraigned for trial or entered a plea to the indictment, that there is not shown any list of names of the trial jurors, and that no minute entry of trial or verdict appears; and (2) that an entire term of court intervened between the trial and verdict and the entry overruling the motion for a new trial and imposing sentence, the court thereby losing jurisdiction in the matter.

This motion to reverse and dismiss must be denied. If the sufficiency of the journal record of the District Court is itself attacked, that question is not now open for consideration under Rule 11 for want of assignment, except that the court may, at its option, notice a "plain error," and under this optional power we decline to notice errors not real and vital. Counsel for the defendant below prepared a bill of exceptions in which they incorporated, as an integral part thereof, not only the entire evidence in verbatim form, but also recitals of the impaneling of the jury, of proceeding to trial, and of the return of the verdict, a copy of the verdict, the motion for a new trial, the motion and affidavit for a mistrial, and the minute entry overruling the motion for a new trial and imposing sentence. While those things which should appear by the journal of the court have no proper place in a bill of exceptions, yet we must assume that the events recited did take place. Except as to arraignment and plea, the recitals in the bill of exceptions show that, in any event, the record omissions, if any, are those which can ordinarily be supplied nunc pro tunc; and, even though the defendant had not been formally arraigned, or had not pleaded to the indictment, his proceeding to trial without raising this objection would imply a waiver, or at least the formal defect would not be prejudicial. Garland v. State of Washington, 232 U. S. 642, 34 S. Ct. 456, 58 L. Ed. 772. Under these circumstances, we think that the alleged record omissions, if they exist, are defects which, giving effect to Judicial Code section 269 (28 USCA § 391), we ought not to regard as ground for reversal when error thereon is not assigned.

In arguing that the court lost jurisdiction by reason of the November, 1925, term intervening between verdict and sentence, counsel for the defendant fails to distinguish between postponing sentence pending the decision of a motion for a new trial and indefinitely deferring sentence, thus in effect suspending sentence or condoning the offense. The cases cited by plaintiff in error all relate to the latter aspect at a time when the District Courts were not expressly authorized to suspend sentence. It is clearly competent for the trial court to postpone sentence pending decision of the motion for a new trial as was here done. Ormsby v. U. S., 273 F. 977 (C. C. A. 6). The trial judge having died after verdict, it was also competent for his successor in office to pass upon the motion for a new trial and to allow the bill of exceptions. The conditions enumerated in R. S. § 953, as amended June 5, 1900, c. 717, § 1, 31 Stat. 270 (Comp. Stat. § 1590 28 USCA § 776), are all present in the case at bar.

The next contention seriously urged is that the court erred in not granting the motion of the defendant to declare a mistrial. The jury was charged on the afternoon of June 2d, and, having failed to agree by the usual time for adjournment, were permitted to separate for the night, reconvening the next morning. As the defendant left the federal building on the evening of June 2d, he was arrested by two state officers on a charge of being a fugitive from justice from the state of Mississippi....