McNutt v. United States

• Decision Date: 15 July 1920
• Docket Number: 5539.
• Citation: 267 F. 670
• Parties: McNUTT v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

267 F. 670

McNUTT v. UNITED STATES.

No. 5539.

United States Court of Appeals, Eighth Circuit.

July 15, 1920

M. E Dunaway, of Little Rock, Ark. (Gardner K. Oliphint, of Little Rock, Ark., on the brief), for plaintiff in error.

June P Wooten, U.S. Atty., of Little Rock, Ark. (R. W. Wilson, Asst U.S. Atty., of Monticello, Ark., on the brief), for the United States.

Before SANBORN and CARLAND, Circuit Judges.

SANBORN Circuit Judge.

The writ in this case charges errors in the trial of the defendant below for carrying on the business of a retail liquor dealer without having paid the special tax of $25, as required by law. He was convicted and sentenced to pay a fine of $100, and to be imprisoned in the penitentiary for 18 months.

When his case was called for trial, he entered the plea of not guilty. He was then asked if he had counsel to represent him and he answered that he had not. He was next asked if he desired the court to appoint counsel to represent him, to which he replied that he was not guilty of the offense charged against him, that he did not think it was necessary for him to have counsel to represent him in the case, and that he did not wish the court to appoint counsel for him. Thereupon he was tried without counsel. He did not make any objections or take any exceptions to any testimony or to any rulings of the court, he did not cross-examine any of the witnesses, nor did he take any part in the trial, except that he took the stand, was duly sworn, and testified that he never sold any whisky or intoxicating liquor to Roy Paine, a witness for the government, or to any one else, but that he did bring a carload of whisky into the city of Little Rock with the intent to sell it, but that he never sold any, because he was arrested and the whisky taken from him.

After the defendant's trial and conviction he evidently procured the services of Mr. Dunaway as his counsel, who prepared an assignment of errors, sued out the writ of error, and briefed and argued his case for him in this court. The United States attorney meets his brief and argument with the objection that because there were no objections or exceptions to any of the evidence, or any of the rulings of the court at the trial, there is nothing here for this court to consider or review and the judgment must be affirmed. Such is undoubtedly the general rule, but there is an exception to it as firmly established as the rule itself. It is that in criminal cases, where the life or liberty of the citizen is at stake, the courts of the United States in the exercise of a sound discretion, may notice and relieve from radical errors in the trial which appear to have been seriously prejudicial to the rights of the defendant, although the questions they present were not properly raised or preserved by objection, exception, request, or assignment of error. Wiborg v. United States, 163 U.S. 632, 658, 16 Sup.Ct. 1127, 41 L.Ed. 289; Weems v. United States, 217 U.S. 349, 363, 30 Sup.Ct. 544, 54 L.Ed. 793, 19 Ann.Cas. 705; Sykes v. United States, 204 F. 909, 914, 123 C.C.A. 205, 210; August v. United States, 257 F. 388, 392, 168 C.C.A. 428, 432; Fielder v. United States, 227 F. 832, 833, 142 C.C.A. 356, 357. An examination of the record of the trial of the defendant has persuaded that this is one of the cases that fall under this exception. That record discloses this state of facts:

The indictment alleged that on the 1st day of August, 1918, the defendant was carrying on the business of a retail liquor dealer in the Western Division of the Eastern District of Arkansas, without having paid the special tax imposed by the acts of Congress. The trial was on October 29, 1919. The United States attorney called as a witness for the government Roy Paine, and asked him how long he had known the defendant, and he answered, 'About 3 months.' Then the record reads in this way:

'Q. Are you not mistaken about that? A. I think not.

'Q. Do you mean from now, or from the time of the finding of the indictment? A. I mean about 3 months ago from now I met the defendant.

'Q. Is this your affidavit and signature (handing to the witness a certain paper or writing)? A. It is my signature.

'Q. Did you not state in that affidavit that you had known the defendant 15 months at that time, which was more than 6 months ago? A. I signed that paper, but I did not do the writing that is in it; cannot be positive whether I made all the statements contained therein.

'The Court: Do you know what the punishment is for perjury (addressing the witness Paine)?

'Witness: I think I do, your honor.

'The Court: Well, when were you telling the truth, at the time you made that affidavit (referring to the paper or affidavit which had previously been handed the witness by the district attorney), or are you telling the truth now? A. I knew him 15 months ago, before the indictment was returned, and the statement in the affidavit is correct.'

The prosecutor then took the witness, asked him if he ever bought any liquor of the defendant, and he answered that he did not know whether he bought it of him or not; that he bought some twice, a pint each time, at the defendant's house, which was a large boarding house; that he went into the hallway of that house at night in the dark and bought it from some one; that he could not say for sure whether it was the defendant he bought from or not, but that he thought it was the defendant, but that he was not absolutely positive that it was he. This concluded the testimony of Mr. Paine, whereupon, in the presence of the jury, the court said:

'Mr. District Attorney, I think you had better file an information against the witness Roy Paine, charging him with perjury; the bond will be $5,000.'

And the district attorney replied:

'Very well, your honor; that will be done.'

There was no other evidence in this case of the sale of any liquor by the defendant, or of the holding out or offering to sell any liquor to any one by the defendant, or of the carrying on of the business of selling liquor by him. The prosecutor called another witness on this subject of the sale of liquor by the defendant, who testified that he had known him pretty well for many years, but that he had never bought any liquor of him, and had never known of any one else purchasing any liquor from him. The prosecutor then proved by revenue officers that one night in August, 1918, when the defendant was away from home, they commenced a search of the defendant's house, and found five or six pints of whisky in an old trunk, that they had a tip that the defendant was coming in with a load of whisky that night, and the next morning they searched again and found 40 pints more. The defendant testified that he had never sold any whisky to any one as has been stated, and this was all the material testimony in the case.

The purpose of the review by appellate courts of trials in the courts below is to ascertain whether, according to recognized rules of procedure, those trials were fair and impartial, and if in a criminal case there is serious doubt about it to make sure by another trial that the accused has a trial that is fair and impartial. If this purpose is to be really and practically accomplished, both trial and appellate courts must strive to find out the actual effect upon the jury of the action of counsel for the parties and of the court which tries the case. What was the natural and probable effect upon the witnesses and jurors in this case of the court's treatment of the witness Paine? Was it not to impress the former with the imminent danger to them of arrest for perjury, if they failed to answer questions as the prosecutor desired,...