Lewis v. United States

• Decision Date: 26 July 1926
• Docket Number: No. 7239.,7239.
• Citation: 14 F.2d 369
• Parties: LEWIS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

14 F.2d 369 (1926)

LEWIS et al. v. UNITED STATES.^*

No. 7239.

Circuit Court of Appeals, Eighth Circuit.

July 26, 1926.

R. L. Davidson, of Tulsa, Okl. (W. I. Williams, of Tulsa, Okl., on the brief), for plaintiffs in error.

Nugent Dodds, Sp. Asst. Atty. Gen., and Frank Lee, U. S. Atty., of Muskogee, Okl. (John M. Goldsberry, Sp. Asst. U. S. Atty., of Tulsa, Okl., on the brief), for the United States.

Before LEWIS and KENYON, Circuit Judges, and TRIEBER, District Judge.

TRIEBER, District Judge.

The plaintiffs in error, hereinafter referred to as the defendants, were indicted in the District Court for the Eastern District of Oklahoma, on October 9, 1924, for violation of the National Banking Act. Upon a trial to a jury in that district they were found guilty on a number of counts and sentenced to imprisonment and the payment of fines.

Among the many assignments of error (there are 241) it is only necessary, in view of the conclusions reached by us, to refer to the following:

"(19) The District Court erred in overruling and in not sustaining the motion of the defendants to dismiss the indictment for want of jurisdiction in the new United States District Court for the Eastern District of Oklahoma to try the cause, upon the ground that the offenses charged in the indictment were not committed within the territorial jurisdiction of the present Eastern District, but are alleged to have been committed in Tulsa county, Okl., in the old United States District Court for the Eastern District of Oklahoma outside of the present Eastern District of Oklahoma and in what is now a part of the Northern District of Oklahoma, and that under the Sixth Amendment to the Constitution of the United States of America the defendants were entitled to a speedy and public trial by an impartial jury in the state and district wherein the crime was alleged to have been committed which district must have been previously ascertained."

"(20) The District Court erred in overruling the motion and request of the defendants to have the fact of the Honorable Franklin E. Kennamer's disqualification as trial judge entered upon the records of the court after the filing in this cause of the affidavit of the defendants that Judge Kennamer had a personal bias and prejudice against them and in favor of the government, which was certified by counsel of record as having been made in good faith, and which was in all respects legally sufficient to disqualify him, and in refusing to cause his disqualifications to be properly certified to the Senior Circuit Judge of the United States Circuit Court of Appeals for the Eighth Circuit in accordance with the provisions of the judicial code."

(22) It is only necessary to set out the substance of this assignment. "That persons, qualified jurors residing in two counties now a part of the Northern District of Oklahoma, at the time of the alleged commission of the offense were a part of the Eastern District of Oklahoma, were excluded from the jury box out of which the jurors for the trial of this cause were drawn and the motion of the defendants to quash the jury panel drawn from said box was erroneously overruled by the court."

The contention of counsel for defendants is that originally there were two judicial districts in that state, the Eastern and Western. Section 101, Judicial Code (Comp. St. § 1088). An Act of Congress of February 16, 1925, 43 St. 945 (Comp. St. § 1088), created three new and independent districts in the state, and these new districts, not having been ascertained at the time the offenses are charged to have been committed, as required by the Sixth Amendment to the Constitution, there is no federal court in the state of Oklahoma which has jurisdiction to try persons charged with crimes committed prior to February 16, 1925.

In our opinion this claim is without merit. Section 59 of the Judicial Code (Comp. St. § 1041) expressly provides for such cases. As far as applicable to the instant case, it reads:

"Whenever any new district or division has been or shall be established, or any county or territory has been or shall be transferred from one district or division to another district or division, prosecutions for crimes and offenses committed within such district, division, county, or territory prior to such transfer, shall be commenced and proceeded with the same as if such new district or division had not been created, or such county or territory had not been transferred, unless the court, upon the application of the defendant, shall order the cause to be removed to the new district or division for trial."

Authorities in point are United States v. Hackett (C. C.) 29 F. 848; United States v. Benson (C. C.) 31 F. 896; In re Benson (C. C.) 58 F. 962; In re Mason, 85 F. 145; 6 Opin. Atty. Gen. 103.

As stated by Mr. Justice Field, sitting as Circuit Justice, in United States v. Benson, supra, Sawyer, Circuit Judge, and Hoffman, District Judge, concurring, in which the identical question was in issue:

"The organization of the original district was not changed. Its officers were continued in office as before, and were charged with the same duties, and they retained the custody of its records. Its territorial jurisdiction alone was affected; that was reduced by the detachment of the counties named, except as to past offenses. In the prosecution and punishment of those offenses, the original district continued in its full extent. For that purpose the new act is to be treated as nonexistent. Its language...