May v. United States

• Decision Date: 04 September 1916
• Docket Number: 4559.
• Citation: 236 F. 495
• Parties: MAY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

236 F. 495

MAY v. UNITED STATES.

No. 4559.

United States Court of Appeals, Eighth Circuit.

September 4, 1916

Chester H. Krum and Walter N. Davis, both of St. Louis, Mo., for plaintiff in error.

Robert W. Childs, Sp. Asst. Atty. Gen. (Arthur L. Oliver, U.S Atty., of St. Louis, Mo., on the brief), for the United States.

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

CARLAND Circuit Judge.

Joseph May with one Will Brown was tried, convicted, and sentenced to the penitentiary upon two indictments consolidated for the purpose of trial, for violating the provisions of an act of Congress, approved August 2, 1886 relating to the sale and manufacture of oleomargarine. He seeks a reversal of the judgment for error committed by the trial court in overruling his motion to quash the indictments.

We thus limit the assignments of error for the reason that the alleged error of the court in ruling on the motion in arrest is abandoned in the brief, and there was no ruling of the court on the question of whether the attorney for the United States should have been required to make an opening argument at the close of the case. The motion to quash was in the following language:

'Come now the above-named defendants Joseph May, Will Brown, et al., by their attorney, and move the court to set aside the indictment found herein against them in said cause for the following reasons:

'First. Because Robert Childs, who is not a citizen or resident of the Eastern District of Missouri, and who is not the district attorney, nor an assistant district attorney, and who was not a witness, was present in the grand jury room, examining witnesses, and participating in the proceedings herein against said defendants when said indictment was found, and that he had no right to be there.

'Second. That the said Robert Childs, not being United States district attorney, nor one of the regular assistants for this district, failed to procure the express permission of the District Court of Missouri to appear before said grand jury.

'Third. That the said Robert Childs failed to show by what authority he exercised the right to appear before the grand jury, and that he failed to file any appointment or permission issued to him with the clerk of the District Court for this district, and has failed to place in the custody of the clerk of the District Court for this district the oath required by law to be by him taken.'

For such irregularity in relation to the grand jury as is complained of, a motion to quash seems to be made use of in many instances instead of a plea in abatement, although the plea in abatement is the proper remedy in all cases of contested fact. United States v. Gale, 109 U.S. 65, 3 Sup.Ct. 1, 27 L.Ed. 857; Carter v. Texas, 177 U.S. 442, 20 Sup.Ct. 687, 44 L.Ed. 839; Agnew v. United States, 165 U.S. 36, 17 Sup.Ct. 235, 41 L.Ed. 624; United States v. Philadelphia & Reading Railway Co. (D.C.) 221 F. 683; United States v. Virginia-Carolina Chemical Co. (C.C.) 163 F. 66; United States v. Heinze (C.C.) 177 F. 770; Latham v. United States, 226 F. 420, 141 C.C.A. 250.

No disputed question of fact arose in the court below in disposing of the motion to quash. Mr. Childs testified, when called by counsel for the defendant in support of the motion to quash, as follows:

'I am an attorney at law. Between the 18th and 23d days of December, 1914, I attended before the grand jury at St. Louis, Mo., and questioned witnesses in oleomargarine cases. I am not a resident of the Eastern District of Missouri, nor am I the United States district attorney for said district, or one of the regularly appointed assistants to said attorney. I received no authority from the District Court of said district to appear before the grand jury; neither my oath of office nor my appointment was filed with the court.'

One of the indictments consolidated was returned March 24, 1913, and with which Mr. Childs had nothing to do. The other indictment was returned December 23, 1914, and it is to this indictment that the appearance of Mr. Childs before the grand jury relates. Mr. Childs, to show his authority to appear before the grand jury, introduced in evidence the following letters, and his oath of office:

'October 13, 1914.

'Robert W. Childs, Esq., % United States Attorney, Chicago, Illinois-- Sir: You are hereby appointed a special assistant to the Attorney General for the purpose of assisting in the preparation for trial, and in the trial in the District Court of the Eastern District of Missouri, of the so-called oleomargarine cases there pending, or to be pending.

'Your compensation will be at the rate of $25.00 per day for each day of actual service in the discharge of these duties, and you will also be allowed your actual and necessary expenses of travel and subsistence, subject to the provisions of Department Circular No. 486, when away from Chicago, Illinois, which is hereby fixed as your official headquarters, all payable from the appropriation for 'Pay of Special Assistant Attorneys, United States Courts.'

'This appointment is subject to any change which may be made by this department, and may be terminated at any time by the Attorney General.

'Please execute and return the enclosed oath of office.

'Respectfully,

For the Attorney General, 'Sam'l J. Graham, Assistant Attorney General.'

'I, Robert W. Childs, do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office of special assistant to the Attorney General on which I am about to enter. So help me God.

Robert W. Childs.

'Subscribed and sworn to before me this 14th day of December, A.D. 1914.

'(Seal.)

Esther A. Dunshee, Notary Public.' 'December 3, 1914.

'Robert W. Childs, Esq., % United States Attorney, Chicago, Illinois-- Sir: In connection with your appointment dated October 13, 1914, as a special assistant to the Attorney General for the purpose of assisting in the preparation for trial, and in the trial, in the District Court of the Eastern District of Missouri, of the so-called oleomargarine cases there pending or to be pending, you are hereby authorized to go to St. Louis the week of the 14th instant for the purpose of preparing these cases for trial and securing the statements of witnesses, and are also authorized and directed to conduct grand jury proceedings in the Eastern District of Missouri in connection with the investigation of these cases.

'Respectfully,

T. W. Gregory, Attorney General.'

We do not mention the letter written by the Attorney General and dated January 22, 1915, as we are of the opinion that if the appearance of Mr. Childs before the grand jury in December, 1914, was unauthorized, the letter of January 22, 1915, would not help the matter. The oath above mentioned was filed in the Department of Justice. The act of Congress of June 30, 1906 (34 Stat. 816) provides as follows:

'That the Attorney General or any officer of * * * justice or any attorney or counselor specially appointed by the Attorney General under any provision of law, may, when thereunto specifically directed by the

...