Luxenberg v. United States
| Decision Date | 17 November 1930 |
| Docket Number | No. 2941.,2941. |
| Citation | 45 F.2d 497 |
| Parties | LUXENBERG v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Charles N. Campbell, of Martinsburg, W. Va., and Sam T. Spears, of Elkins, W. Va. (Howard H. Emmert, of Martinsburg, W. Va., on the brief), for appellant.
William C. Howard, Asst. U. S. Atty., of Wheeling, W. Va., and Frank E. Parrack, Asst. U. S. Atty., of Kingwood, W. Va. (Arthur Arnold, U. S. Atty., of Piedmont, W. Va., on the brief), for the United States.
Before NORTHCOTT, Circuit Judge, and McCLINTIC and HAYES, District Judges.
The defendant was convicted and sentenced for a conspiracy to conceal assets from his trustee in bankruptcy. His appeal presents eighteen assignments of error, but he concedes there is no reversible error in assignments Nos. 3, and 13 to 17, inclusive.
Assignments 1 and 2 question the rejection of a plea in abatement and motion to quash indictment for that the indictment was returned by the grand jury without any competent evidence, as the defendant was informed and believed. These assignments are without merit for many reasons, but primarily the motions and affidavits do not state facts but mere conclusions and the conclusions are only stated on information and belief.
A ruling on a plea in abatement of this character is not reviewable on appeal. 28 USCA § 879. Barnsdall v. Waltemeyer (C. C. A.) 142 F. 415, certiorari denied 201 U. S. 643, 26 S. Ct. 759, 50 L. Ed. 902.
A motion to quash indictment is ordinarily addressed to the discretion of the court, and a refusal to quash is not ordinarily assignable for error. United States v. Rosenberg, 5 Wall. 580, 583, 19 L. Ed. 263; Logan v. United States, 144 U. S. 263, 12 S. Ct. 617, 36 L. Ed. 429; Durland v. United States, 161 U. S. 314, 16 S. Ct. 508, 40 L. Ed. 712; Chadwick v. United States (C. C. A.) 141 F. 225, 235; Dillard v. United States (C. C. A.) 141 F. 303, 305; Hillegass v. United States (C. C. A.) 183 F. 199, 200; Lewis v. United States (C. C. A.) 295 F. 441; Stewart v. United States (C. C. A.) 300 F. 769.
"As a motion to quash is always addressed to the discretion of the court, a decision upon it is not error, and cannot be reviewed on a writ of error." United States v. Hamilton, 109 U. S. 63, 3 S. Ct. 9, 27 L. Ed. 857.
The courts are not in unison as to the propriety of inquiring into the evidence produced before the grand jury. While the federal courts recognize the right to entertain a motion to quash, it is regarded discretionary, and the ruling presents no question for review. Livezey v. United States (C. C. A.) 279 F. 496. The record here discloses no abuse of discretion.
Assignment 4 is to the refusal to order the taking of depositions of defendant's witnesses residing out of the state. It is urged that the West Virginia statute in regard to taking depositions controls. We cannot accept this view. Congress has made provision for service and attendance of witnesses in criminal cases. It was early determined that no power existed in the federal courts to order the taking of depositions in criminal cases. United States v. Thomas, Fed. Cas. No. 16,476. They were unknown and unauthorized at common law. 8 R. C. L. pp. 86 and 1134.
Assignments 5, 6, and 8 are to the refusal to direct a verdict of not guilty at the close of the evidence for the United States, and at the close of all the evidence, and to set aside the verdict. We have carefully examined the evidence and find no error. The evidence, if believed, was fully sufficient to support the verdict.
At the close of the evidence for the United States, defendant moved to strike out overt acts 1, 2, 3, 5, 8, and 9 from the indictment. No reason was assigned at the trial why they should be stricken. It is now urged that they are indefinite and insufficient to constitute overt acts of the conspiracy charged. The indictment, containing but one count, charged a general conspiracy in anticipation of bankruptcy to conceal from the trustee in bankruptcy $5,000 in money and goods, wares, merchandise, and other property, the total value and more definite description of which were to the jurors unknown. It set forth thirteen overt...
To continue reading
Request your trial
-
Roche v. Evaporated Milk Ass
...although also holding that the pleas were properly overruled. Mounday v. United States, 8 Cir., 225 F. 965, 967; Luxenberg v. United States, 4 Cir., 45 F.2d 497, 498; Biemer v. United States, 7 Cir., 54 F.2d 1045; United States v. Molasky, 7 Cir., 118 F.2d 128, 133. And the section has on o......
-
Kardy v. Shook
...to ours was involved, in State v. Tune, 13 N.J. 203, 98 A.2d 881.4 In addition to the cases there cited see the following: Luxenberg v. United States, 45 F.2d 497, 498 (C.A.4), cert. den. 283 U.S. 820, 51 S.Ct. 345, 75 L.Ed. 1436; Ex parte Denton, 266 Ala. 279, 96 So.2d 296; Bailey v. State......
-
U.S. v. May
...598, 602-03 (6th Cir.1989) (citing Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 87 L.Ed. 23 (1942)); Luxenberg v. United States, 45 F.2d 497, 498 (4th Cir.1930) ("The overt act need not be a criminal act, nor need it constitute the very crime that is the object of the conspirac......
-
United States v. Westbrook
...conspiracy. That is matter of proof." 86 F.2d at page 46. To the same effect see Marron v. U. S., 9 Cir., 8 F.2d 251, and Luxenberg v. U. S., 4 Cir., 45 F.2d 497. In discussing the allegations of overt acts contained in the conspiracy count of this indictment we disregard for present purpos......