Lett v. United States

• Decision Date: 27 October 1926
• Docket Number: No. 7371.,7371.
• Citation: 15 F.2d 686
• Parties: LETT v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

15 F.2d 686 (1926)

LETT v. UNITED STATES.

No. 7371.

Circuit Court of Appeals, Eighth Circuit.

October 27, 1926.

John T. Harley, of Tulsa, Okl. (Rollie C. Clark, of Vinita, Okl., on the brief), for plaintiff in error.

John M. Goldesberry, U. S. Atty., and W. L. Coffey, Asst. U. S. Atty., both of Tulsa, Okl.

Before VAN VALKENBURGH and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

VAN VALKENBURGH, Circuit Judge.

On May 20, 1925, in the Northern district of Oklahoma, an indictment containing two counts was filed against plaintiff in error, the first charging that on or about the 21st day of April, 1925, in Nowata county, in the Northern district of Oklahoma, she had unlawfully in her possession 29 cubes of morphine, contained in a tin box. The second count charged the unlawful sale to one Josephine West of 29 cubes of morphine, contained in a tin box, on or about the 6th day of April, 1925, in Nowata county, state of Oklahoma, and within the jurisdiction of the court.

November 25, 1925, the defendant filed a demurrer to this indictment and a motion for a bill of particulars. Concerning the demurrer it is sufficient to state that it is entirely general in its terms, stating as grounds that the indictment does not state facts sufficient to charge an offense against the laws of the United States, and upon which to base the jurisdiction of the court. It does not appear from the record that this demurrer was passed upon, nor that any exception was taken to any action of the court with respect thereto.

The motion for bill of particulars, so far as the same is pertinent to this discussion, asked that the prosecution be required to state particularly the date upon which, and the place at which, the offense charged in each count of the indictment was alleged to have been committed. The case had been set for trial on the day following the filing of this motion, and the motion was overruled for the following reason stated by the court:

"The motion for a bill of particulars is overruled for the reason that the defendants requested that they be not required to be present on plea day, but would appear on the day of the trial and enter their plea, and go to trial without prejudice to the time to plead. Further, the district attorney in open court tenders to counsel for defendants the information as to the exact place and time the transaction took place on which the government bases this prosecution."

To this statement of the court the district attorney added the following: "Including that we are willing to give him the facts we have at our command with reference to the facts and circumstances surrounding the commission of the offenses. I am willing to do that."

Counsel for plaintiff in error then dictated the following exception: "To which action of the court the defendants, and each of them, except in each particular case, for the reason that counsel was present in Pawhuska on yesterday and remained here from before 12 o'clock until nearly 4, and didn't see an opportunity to present these motions at that time to the court, and went back to Tulsa, and returned here to-day for the purpose of presenting them before the date of the trial, in keeping with his statement to the court that a continuance for arraignment and plea would not be prejudicial to the date of the trial, and for the further reason that the offer of the United States attorney to furnish facts not pleaded in this case would not avail the defendants their rights, for the reason that they could not then be pleaded in defense of another prosecution."

November 26, 1925, the cause, by order of court, was stricken from assignment and continued to December 16th following. Upon trial, conviction resulted. Upon the first count plaintiff in error was sentenced to imprisonment for a term of five years; upon the second count, to imprisonment for a term of two years and to pay a fine of $1,000 — the prison terms to run concurrently.

The errors assigned and to be considered are: (1) The denial of the motion for bill of particulars. (2) The overruling of defendant's demurrer to the evidence and the court's instruction to the jury that proof of possession upon any day between April 21, 1925, and May 20, 1925, was sufficient in that respect to sustain the first count of the indictment. (3) The refusal of a requested instruction. (4) The comment of the court upon the testimony of the government's witness Josephine West.

1. The point raised with respect to the denial of the motion for bill of particulars demands careful consideration. These general principles may be stated at the outset: The indictment in each count stated an offense against the laws of the United States, committed within the jurisdiction of the trial court; in such case, if it fails to advise a defendant with sufficient particularity of matters necessary to enable him to prepare his defense, and to safeguard him from further prosecution for the same act, such details may be supplied by a bill of particulars. The duty devolves upon a defendant to make seasonable and appropriate application for the information desired. If the point is well taken, the court should order the information or details asked to be supplied. If it fails so to do, if the discretion exercised is not sound, and the record otherwise does not supply the necessary matter, the appellate court should grant appropriate relief; but a judgment of conviction will not, on this account, be reversed, if from the whole record it appears that no substantial prejudice to the defendant has resulted.

By its motion plaintiff in error requested the government to state particularly the date upon which, and the place at which, the offense was alleged to have been committed. Upon the face of the indictment — more particularly the first count thereof — it would appear that such more specific information might well have been required. The district attorney offered to give informally the facts the government had at its command with reference to the circumstances surrounding the commission of the offenses. Counsel for plaintiff in error required the same to be made a matter of record through the instrumentality of a bill of particulars, in order that the same might be pleaded in defense of another prosecution. We think, in general, that a defendant is entitled to this safeguard in a case where such particularity is demanded.

The court overruled the motion for the additional reason that it came too late, the defendant having requested that she be not required to be present on a former plea day, but having agreed to go to trial without prejudice on the date of setting. The filing of this motion on that date was considered a violation of that promise. Ordinarily this action of the court could not be assailed as abuse of discretion. It was taken in the interest of a prompt disposition of the case. However, the trial was immediately postponed for a period of three weeks, which gave ample time for the filing of a bill of particulars without causing delay; but the defendant did not renew her motion for the bill.

It now becomes material to consider the merits of the motion. Turning to the first count, an examination of the record discloses that the 29 cubes of morphine, the possession of which is therein charged, are identical with those alleged in the second count to...