Lowdon v. United States

• Decision Date: 31 December 1906
• Docket Number: 1,588.
• Citation: 149 F. 673
• Parties: LOWDON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

149 F. 673

LOWDON et al. v. UNITED STATES.

No. 1,588.

United States Court of Appeals, Fifth Circuit.

December 31, 1906

Geo. E Miller and S. P. Hardwicke (Matlock, Miller & Dycus and Hardwicke & Hardwicke, on the brief), for plaintiffs in error.

William H. Atwell, U.S. Atty.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

SHELBY Circuit Judge.

The defendants, James G. Lowdon, president, and Otto W. Steffins vice president, of the American National Bank of Abilene Tex., were indicted in the court below for violations of section 5209 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 3494). There were 31 counts in the indictment. The district attorney withdrew or dismissed 2 of the counts. Lowdon was found guilty on 16 counts, and Steffins on 6 counts. Judgment was entered on the verdict and the defendants were sentenced to be confined in the penitentiary for a period of five years. They brought the case here on writ of error.

The indictment was returned and filed on March 21, 1906. Nineteen days afterwards, when the case was called for trial, the defendant Lowdon filed a plea in abatement. The substance of the plea was that of the regularly summoned grand jurors, only 15 were in attendance, whereupon the court ordered the marshal to summon two more grand jurors in order that the grand jury should be composed of 16 members. It is alleged in the plea that the marshal called two men who were in attendance on the court, and who had been summoned as petit jurors. As a reason for not interposing the plea sooner, it was stated:

'This defendant says that he was not present in said court at the time of the selection, summoning, and impaneling of the grand jury aforesaid, he then being absent from the state of Texas, and remained so absent from the state of Texas until a time later than the return of the said indictment.'

The plea contained no averment of specific facts to show that the defendant had been prejudiced or injured by the selection of the two grand jurors in question. The general statement was made that the defendant had been 'greatly prejudiced' by the improper and illegal selection, etc., but no fact was alleged showing injury, except that the grand jury so organized found the indictment. The government, by the district attorney, demurred to the plea, because it failed to show that the defendant was injured, and because it failed to show that the requisite number of jurors did not return the bill of indictment. The court sustained the demurrer, and this action of the court is assigned as error.

Section 808, Rev. St. U.S., c. 86, 13 Stat. 500 (U.S. Comp. St. 1901, p. 626), is as follows:

'Section 808. Number of grand jurors; completing jury. Every grand jury empaneled before any district or circuit court shall consist of not less than sixteen nor more than twenty-three persons. If of the persons summoned less than sixteen attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either immediately or for a day fixed, from the body of the district, and not from the by-standers, a sufficient number of persons to complete the grand jury. And whenever a challenge to a grand juror is allowed, and there are not in attendance other jurors sufficient to complete the grand jury, the court shall make a like order to the marshal to summon a sufficient number of persons for that purpose.'

The contention of the defendant is that this statute was violated by the procedure, because the marshal completed the grand jury by summoning two bystanders. It does not appear in what terms the order of the court was made, or that any order was entered on the minutes. We do not think the plea makes a statement that calls for a construction of the statute. An objection of this kind should be made at the earliest day that the defendant has an opportunity to make it. The plea may be true, and yet the defendant may have delayed 17 days in filing it after his return to the state, and after the bill was filed and entered. In Agnew v. United States, 165 U.S. 36, 45, 17 Sup.Ct. 235, 41 L.Ed. 624, a delay of five days was noted in treating the plea as insufficient. In that case, it was also held that the general words, that the action complained of 'tended to his (defendant's) prejudice,' was not sufficient. Without considering whether the statements of the plea were otherwise sufficient, we hold that the demurrer was properly sustained on the authority of Agnew v. United States, supra.

On the trial of the case below, exceptions were taken by the defendants to certain arguments and statements made to the jury by the district attorney. For convenience of reference, these statements or arguments will be numbered 1 and 2. They are as follows:

'(1) Now, gentlemen, has a single man come upon this stand and told you about the character of Lowdon as to his honesty? That matter has been put in issue by these charges and this testimony here. Has one? No one; not one; not one. I concede you, my friends, that it is hard, but I am going to say it, it is a hard thing to say, but I ought to say it; that is what I am here for. I am here to prosecute this case, as I say, God Almighty being my helper, as fiercely and strongly as I may consider is fair. When that man is charged with an offense, or any other man, right at that instant his reputation comes in question, and he may support it by the testimony of his people as to its goodness. I could not put a witness on and show that it was not good, except as I have done by the testimony in this case. It is then passed up to him; it is his play. Another thing, you need not tell me that these five attorneys here-- the best that could be gotten-- strong men personally, and strong men mentally; you need not tell me that these attorneys overlooked any bets-- to use the common expression. Don't you know that if he could have found any witness who would have testified to his good character he would have done so? But he brings not one. Not one. * * *

'(2) As Mr. Cunningham has said to you, that six men cannot return a verdict of guilty in this case, nor can eleven; that it is required that 12 men shall agree before these men can be convicted. In this connection I want to suggest to you, gentlemen of the jury, that I would hate to be the obstinate man on this jury who would hang out against a verdict of guilty with his fellows in a case like this, where a national banker is on trial for embezzlement, misapplication and abstraction of the property and funds of this bank, to the detriment of suffering depositors; because, when I returned home my friends and neighbors, who possibly are not versed and familiar with the various technicalities and intricacies of the law, might conclude that the jingle of the broken bankers' unlawfully and illy gotten gold in my pocket had influenced my action. Occupying the position I do, I cannot do less than my whole duty in this case in the prosecution of these defendants, for fear that it might be said of me that I had received money in addition to my salary.'

When each of the foregoing arguments was made to the jury by the district attorney, the counsel for the defendants made objection. The court overruled the objections, and permitted the district attorney to proceed with the argument, whereupon exceptions were duly reserved by the defendants. After the conclusion of the argument in the case, the defendants requested charges which, in effect, instructed the jury to disregard these arguments, the charges being properly framed to remove any improper influence that the arguments might have had upon the jury. The court declined to give each of these charges, and exceptions were again duly reserved. The bill of exceptions shows that the attorneys for the defense, in their arguments to the jury, had, without objection, made observations to which, it is claimed, the district attorney's remarks were intended to reply.

The chief function of the legal profession is the administration of justice. The duties of the bench and bar are, to this extent, alike. The purpose of both is to establish the truth and to apply the law to it. To ascertain the truth is often difficult, and the united labor of the advocate and the judge often, it is feared, fails to accomplish the desired result. But the experience of all civilized countries shows that a trained body of men, advocates and judges, each class performing its respective duties, is required even to approximate success in the establishment of the truth. Forensic strife and the cross-examination of witnesses are the methods best adapted to the ascertainment of the truth. It is the duty of counsel to make the most of the case his client has given him. It is essential that all that is relevant to the case that can be said for each party in the determination of the fact and law should be heard. The very fullest freedom of speech, within the duty of his office, should be allowed to counsel. In addressing either court or jury, the advocate should be allowed to select and pursue his own line of argument, his own method of dealing with the evidence, and the application of the law to it. Every...