Little v. United States

• Decision Date: 15 October 1921
• Docket Number: 5397.
• Citation: 276 F. 915
• Parties: LITTLE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

276 F. 915

LITTLE v. UNITED STATES.

No. 5397.

United States Court of Appeals, Eighth Circuit.

October 15, 1921

Rehearing Denied February 6, 1922.

Charles J. Wright, of Springfield, Mo. (Henry D. Green and J L. Bess, both of West Plains, Mo., and Fyke & Snider, of Kansas City, Mo., on the brief), for plaintiff in error.

Sam O Hargus, Sp. Asst. U.S. Atty., of Kansas City, Mo. (James W Sullinger, U.S. Atty., of King City, Mo., on the brief), for the United States.

Before CARLAND and STONE, Circuit Judges, and MUNGER, District Judge.

MUNGER District Judge.

The plaintiff in error, hereafter called defendant, was convicted of a violation of section 5 of the Selective Draft Act (40 Stat. 80, vol. 1, Supp. U.S. Comp. Stats. Sec. 2044e), on an indictment charging that he failed to present himself for registration on June 5, 1917, although he was within the age limits prescribed by that act. At the trial the chief issue contested was the age of the defendant. It is now urged that the judgment should be reversed because the evidence is as consistent with innocence as with guilt. There was no request for an instructed verdict, and no assignment of error challenges the sufficiency of the evidence, but it has been examined, and it appears that testimony was received showing that the defendant had repeatedly stated his age to various persons, and this was corroborated by much other testimony. The defendant relied upon the testimony of some relatives and former acquaintances, and testimony as to entries of birth dates in a family Bible. Without reviewing this testimony it is sufficient to say that it made a question for the jury. It is assigned that the indictment did not state an offense, but no argument is made in support of the contention, and an inspection of the indictment discloses no substantial defect in its form.

Complaint is made of statements made by the district attorney in his address to the jury as unfair and prejudicial to the defendant. The trial court's attention was not challenged to the statements of which complaint is now made, nor does any assignment of error present the subject, but the remarks made by the district attorney have been carefully considered, and the portions challenged do not appear to have been beyond the fair limits of comment.

It is claimed that the defendant was prejudiced because the district attorney in his argument, and the judge in his instructions to the jury, stated that the penalty for the offense charged might be only a fine, but the judge corrected this misstatement of the statutory penalty by further instructions before submitting the case to...