Lipscomb v. United States

• Decision Date: 11 May 1929
• Docket Number: No. 8060.,8060.
• Citation: 33 F.2d 33
• Parties: LIPSCOMB v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

33 F.2d 33 (1929)

LIPSCOMB v. UNITED STATES.

No. 8060.

Circuit Court of Appeals, Eighth Circuit.

May 11, 1929.

Frank Hickman, of Tulsa, Okl., for plaintiff in error.

John M. Goldesberry, U. S. Atty., of Tulsa, Okl. (W. B. Blair and Harry Seaton, Asst. U. S. Attys., both of Tulsa, Okl., on the brief), for the United States.

Before STONE, Circuit Judge, and FARIS and SYMES, District Judges.

STONE, Circuit Judge.

This is a writ of error from a judgment of conviction for perjury.

Accused had been indicted for selling alcohol in Tulsa, Okl., on August 11, 1926. His defense was an alibi — that he was in Kansas City, Mo., upon that date. He was acquitted of that charge. Thereafter the present indictment was presented charging perjury in his testimony at the trial of the liquor offense. The indictment sets forth the substance of certain testimony given by accused at the trial on the liquor charge, asserts the materiality thereof, and charges that such was corruptly false, "in this, to-wit; that the said defendant B. G. Lipscomb did deliver said fifteen gallons of alcohol to the said W. E. Fox on North Main Street in the City of Tulsa, Tulsa County, Oklahoma, on or about the 11th day of August, A. D. 1926, and that the said B. G. Lipscomb was not in the City of Kansas City, Missouri, on August 11, 1926, and that the said B. G. Lipscomb did not stay at the Lafayette Hotel in Kansas City, Missouri, on the nights of the 10th and 11th days of August, 1926, and that the said B. G. Lipscomb was not in Kansas City, Missouri, on the 11th day of August, 1926; that said statement and testimony was further false in that the said defendant B. G. Lipscomb did not leave Kansas City, Missouri, on the morning of the 12th day of August, 1926, and did not drive from the City of Kansas City, Missouri, to the City of Tulsa, Oklahoma, on the 12th day of August, 1926; that the said statement and testimony was further false in that the said B. G. Lipscomb did not mail the postcard introduced in said cause as Exhibit 2 from Kansas City, Missouri, on the 11th day of August, 1926, at 5:30 P. M."

Several errors are asserted and urged here.

I. The first contention is that the court erred in refusing to disqualify himself upon the affidavit filed against him by accused. Counsel for the United States seriously attacks the sufficiency of the allegations of this affidavit. It is unnecessary to determine that matter, since we are convinced that the affidavit was not filed in time. The right of a party to a suit to disqualify a trial judge rests purely and solely upon the statute. USCA tit. 28, § 25. The indictment was returned July 18, 1927. The arraignment was upon July 26, 1927, when a plea of not guilty was entered. September 16, 1927, proclamation was made of a special term to begin September 20, 1927, and this cause was set down for trial on September 27, 1927. The affidavit of prejudice was executed and filed on September 22, 1927. Every ground alleged therein was known to accused at the time of the indictment, as each had to do with what had taken place during the trial on the liquor charge in the preceding February. There was but one judge in the district, and he knew that judge would, normally, try the case. For about two months after arraignment accused made no move to disqualify the judge, although he had full knowledge, during all of that time, of every fact which he relied upon for disqualification. He waited until a few days before the time set for trial. The natural consequence of such action would be to secure a continuance. Such sharp practice will not avail, and has, in similar instances, been condemned by this court. Bishop v. United States, 16 F.(2d) 410; Rossi v. United States, 16 F.(2d) 712, 716.

II. It is contended that the court erred in overruling a motion to quash the indictment. The grounds for the motion were as follows:

"That said indictment charges the defendant with the crime of perjury alleged to have been committed on or about the 18th day of February, 1927, in an action pending in this court wherein the defendant here was defendant there, and testified to the matters and things set forth in said indictment; that said trial was upon indictment charging defendant, in the fourth count thereof, with having sold fifteen gallons of alcohol to one W. E. Fox on or about August 10th, 1926; that the present indictment charges, in part, that defendant committed perjury in testifying that he did not sell or deliver fifteen gallons of alcohol to one W. E. Fox on or about the 11th day of August, 1926, at the place of business of the said W. E. Fox on North Main Street in the City of Tulsa, Tulsa County, State of Oklahoma;

"That defendant was acquitted by the jury empaneled in said cause of said fourth count of said indictment, along with all other counts therein contained, and that this present charge of perjury is an attempt to again try the defendant for the offenses set forth in said first indictment, under the guise of perjury; and that said acquittal bars this charge.

"The defendant hereby refers to the records of this court as to said trial and acquittal.

"That said indictment contains irrelevant and redundant matters, prejudicial to the rights of the defendant, in this, that said indictment charges certain testimony of defendant to be false, and in one respect false in that the said B. G. Lipscomb did not stay at the Lafayette Hotel in Kansas City, Missouri, on the nights of the 10th and 11th days of August, 1926, and said indictment nowhere charges that defendant testified that he stayed at the Lafayette Hotel in Kansas City, Missouri, on the nights of the 10th and 11th days of August, 1926."

This contention is stated by counsel thus:

"Here the indictment charged, among other things, that the defendant had falsely sworn that he did not deliver fifteen gallons of alcohol to one W. E. Fox on or about the 11th day of August, 1926, at the place of business of the said W. E. Fox on North Main Street in the City of Tulsa, Tulsa County, State of Oklahoma. Of this charge the defendant had been duly acquitted upon trial before a jury.

"While we concede that perjury could be predicated upon other evidential matter than the testimony denying his guilt, still we contend that the indictment was bad because it contained therein matters that could not be retried under the guise of perjury."

Counsel rely upon United States v. Butler, 38 F. 498 (D. C. Michigan) and Chitwood v. United States, 178 F. 442, this court. Those cases would seem to be met by Youngblood v. United States (C. C. A.) 266 F. 795, this court, and see Allen v. United States, 194 F. 664 (C. C. A. 4), note 39, L. R. A. (N. S.) 385; note, L. R. A. 1917B, 743.

Besides, counsel for the United States avoided the situation suggested in the motion to quash. While the indictment was broad, he confined himself to a much narrower line of evidence. At the commencement of the trial occurred the following:

"Thereupon Mr. Hickman made opening statement to the jury on behalf of the defendant.

"The Court: Now, we might shorten the record, I think from the statements made. Mr. Hickman, you agree that the...