Moorehead v. United States

• Citation: 270 F. 210
• Decision Date: 29 January 1921
• Docket Number: 3557.
• Parties: MOOREHEAD et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

270 F. 210

MOOREHEAD et al. v. UNITED STATES.

No. 3557.

United States Court of Appeals, Fifth Circuit.

January 29, 1921

J. A Teat, of Jackson, Miss., for plaintiffs in error.

Julian P. Alexander, U.S. Atty., of Jackson, Miss.

Before WALKER, BRYAN, and KING, Circuit Judges.

WALKER Circuit Judge.

The two plaintiffs in error, George L. Moorehead and J. P Shackelford, were convicted on a count of the indictment charging them and five other persons with conspiring, on or about the 15th day of November, 1918, to steal goods and chattels which were parts of interstate shipments of freight and that, to effect the object of the conspiracy, the seven persons joined in the indictment stole whisky from a certain railway car, to wit, Pennsylvania car No. 50993, alleged to be the property of a named railroad company, then and there moving as and constituting a part of a described interstate shipment of freight.

This case was one of several connected with or growing out of an alleged theft of whisky from a railroad car at Tchula, Miss. After the jury which tried one of those cases had retired on Friday, the court ordered the discharge of the two regular panels of jurors in attendance, and directed the marshal to summon a sufficient number of petit jurors for the following Monday, the day on which this case was to be called for trial. All the jurors constituting the regular panels were present in the courtroom during the trial of the case which went to the jury on Friday, the facts of which were quite similar to those of this case. The defendant challenged the array of jurors returned by the marshal in pursuance of the court's order, moved to quash the special writ of venire facias under which they were brought into court, and that the court direct that a jury be drawn from the jury box. Exceptions were reserved to the action of the court in overruling those motions. Section 2762 of the Judicial Code provides for the public drawing from the jury box of all jurors, grand and petit, including those summoned during the session of the court.

Section 280 of the Judicial Code (Comp. St. Sec. 1257) provides as follows:

'When, from challenges, or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such defect of jurors happens, return jurymen from the bystanders sufficient to complete the panel; and when the marshal or his deputy is disqualified as aforesaid, jurors may be so returned by such disinterested person as the court may appoint, and such person shall be sworn, as provided in the preceding section.'

It is contended that the last-quoted provision is not applicable when, as a result of the discharge of the regular panel of petit jurors summoned, no part of it remains in attendance. That section provides a quick method of supplying jurors when from any cause whatsoever, though jurors had been summoned as provided in section 276 (Comp. St. Sec. 1253), 'there is not a petit jury to determine any civil or criminal case. ' Such lack of a jury is a consequence of the action of the court in discharging the panel or panels regularly summoned. Nothing in the language used indicates an intention to make the provision inapplicable when the lack of a jury is so occasioned. The purpose to prevent inconvenience and delay would be defeated by holding the provision to be inapplicable to such a situation as the one in question. We think the above set out statute authorized the court to have a jury supplied in the manner adopted. Lovejoy v. United States, 128 U.S. 171, 9 Sup.Ct. 57, 32 L.Ed. 389; United States v. Rose (C.C.) 6 Fed. 136.

The action of the court in limiting the time allowed for argument to the jury is assigned as error. It was nearly 12 o'clock at night when the case went to the jury. The counsel in the case had agreed to conclude the case that night, and counsel for the defense had stated that they preferred to finish that night. It is not made to appear that the action of the court, under the circumstances mentioned, in allowing one hour to the side for argument of the case to the jury, was an abuse of discretion.

The court ruled against a plea interposed by the defendant Shackelford, which set up in bar of the offense of which he was convicted in this case his previous acquittal by the verdict of the jury in a trial on an indictment charging him with stealing whisky on or about November 15, 1918, from Pennsylvania car No. 50993. A theft of whisky by the defendants in the instant case from the same car on the same date was the overt act alleged in the count on which the plaintiffs in error were convicted. The offense charged in the instant case is not one of which Shackelford was alleged to have been acquitted.

A plea of former acquittal is unavailing, unless the offense presently charged is precisely the same in law and fact as the former one relied on under the plea. Burton v. United States, 202 U.S. 344, 380, 26 Sup.Ct. 688, 50 L.Ed 1057, 6 Ann.Cas. 392; Kelly v. United States, 258 F. 392, 169 C.C.A. 408. The test of the identity of offenses is whether the same evidence is required to sustain them. Morgan v. Devine, 237 U.S. 632, 35 Sup.Ct. 712, 59 L.Ed. 1153. In United States v. Rabinowich, 238 U.S. 78, 35 Sup.Ct. 682, 59 L.Ed. 1211, it was decided that a conspiracy, having for its object the commission of an offense denounced by the Bankruptcy Act, is not in itself an offense arising under that act, within the meaning of section 29a thereof, and the one-year period of...