McMillan v. United States

• Decision Date: 23 May 1928
• Docket Number: No. 7688.,7688.
• Citation: 27 F.2d 94
• Parties: McMILLAN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

27 F.2d 94 (1928)

McMILLAN et al. v. UNITED STATES.

No. 7688.

Circuit Court of Appeals, Eighth Circuit.

May 23, 1928.

J. S. McMillan and Margaret Gray were convicted of offenses, and they bring error. Affirmed in part, and remanded.

H. T. Church, of Tulsa, Okl., for plaintiffs in error.

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

Before STONE, Circuit Judge, and REEVES and OTIS, District Judges.

STONE, Circuit Judge.

This was originally a joint writ of error by J. S. McMillan and Margaret Gray from convictions under an indictment containing two counts, one for possession of intoxicants in former Indian territory and one for transportation of intoxicants. Counsel for plaintiffs in error stated in the argument that the writ had been dismissed as to Margaret Gray and the case was presented for McMillan alone, and will be so considered.

The first count of the indictment charged the defendant with having possession of one pint of whisky at a place "located half mile east of Rose Hill Cemetery, on Federal Drive, east of the city of Tulsa, Tulsa county, state of Oklahoma, a more accurate description of the exact place being to the grand jurors unknown." The second count charged the transportation "in a Chrysler roadster from a point to the grand jurors unknown to and at a point located on Federal Drive about half a mile east of Rose Hill Cemetery, east of the city of Tulsa, Tulsa county, state of Oklahoma, a more accurate description of the exact place being to the grand jurors unknown" of the same liquor. The claimed errors are argued here under seven propositions.

I. The first proposition is that the court erred in overruling the demurrer to the indictment and also in overruling a motion to require the government to elect upon which count defendant would be tried. The attack upon the first count of the indictment is that it is duplicitous because it charges a violation under several statutes requiring different proof and carrying different penalties. We think this proposition should be determined against plaintiff in error and the indictment held good as being in violation of the Act of June 30, 1919 (25 USCA § 244), under the following decisions of this court: Lucas v. United States, 15 F.(2d) 32; Buchanan v. United States, 15 F.(2d) 496; Renfro v. United States, 15 F.(2d) 991; Sharp v. United States, 16 F.(2d) 876. Another objection to both counts of the indictment is that it does not charge with sufficient particularity the place of the crime. We think there is no merit in this contention as the indictment shows a very accurate statement of the place and it would be impossible for accused to be misled or to be faced with a second charge for the same offense under the above statement. The next contention is that the offense of transportation, charged in the second indictment, included and covered the possession as charged in the first. There is no merit in this contention. The offenses were different, required different proof and were for violations of different statutes.

The objection that the court erred in not sustaining the motion to elect is without merit as the offenses, although different, related to the same general transaction and could properly be charged in the same indictment and tried together under the statute.

II. This proposition relates to portions of the opening statement of the United States attorney to the effect that he would show that immediately prior to the time the car in which the liquor was being transported was driven into another car, it was traveling on the highway at a high rate of speed. We are not at all sure that this statement was improper, but we are certain that it was not prejudicial.

III. This proposition relates to the admission of evidence as to what took place immediately after the collision concerning the conduct of defendant. This testimony was by one of the witnesses and to the effect that she had raised him up and set him back in the car when he started to get out cursing and that they were frightened and started to run down the street because he was drunk and her statement that he was very much intoxicated at that time. It was impossible to show the essential facts of possession here without outlining the transaction in connection with the collision and we think this evidence was proper. Furthermore, his condition at that time, under the surrounding circumstances would have a bearing upon the possession.

IV. This proposition is a claim that the court restricted counsel in cross-examination of one of the prosecuting witnesses and relates to the following evidence:

"Q. Now, couldn't you be mistaken, Mrs. Ballou, about there being liquor in that car?

"The Court: She has already answered that. Do you want her to repeat her answer? She told you awhile ago she was positive there was liquor there."

The same matter had been covered already in the cross-examination, There was no objection to this action of the court, no exception taken thereto and no attempt to further cross-examine along that line. Therefore, this cannot be assigned as error.

V. This proposition is that the court erred in overruling defendant's motion for a directed verdict at the close of the evidence on behalf of the government. As the defendant proceeded thereafter to introduce his evidence, that motion was waived. However, the defendant did present the same point at the close of all the evidence and it is proper to consider it in that connection. We have examined the evidence and think it is amply sufficient to support the verdict.

VI. This proposition is an attack upon a part of the charge on the ground that it is unduly argumentative. We think this objection not well taken. It is true that the court in that part of the charge stated his view of the credibility of the witnesses and of the evidence, but the court very carefully charged the jury in the same connection and in other parts of the charge that they were not in any wise bound by his view of the facts. Another matter argued under this proposition is that the court erred in refusing two requests to charge. The first of these was to the effect that the government relied upon circumstantial evidence for a conviction and that a conviction on such evidence could not be returned unless all of the facts were inconsistent with innocence. This instruction was properly refused as the case presented no such situation and this request had no bearing upon the real issue before the jury.

The evidence for the government was as follows: About 4:30 the morning of May 30, 1926, three ladies (Mrs. Ballou, Mrs. Stough and Mrs. Romine) with two small boys started in a Buick car from Tulsa, Oklahoma, to drive to Kansas City. About four miles from Tulsa their car was struck from the rear by a Chrysler roadster. In the...