Nations v. United States

• Citation: 14 F.2d 507
• Decision Date: 30 August 1926
• Docket Number: No. 7173.,7173.
• Parties: NATIONS v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

14 F.2d 507 (1926)

NATIONS v. UNITED STATES.

No. 7173.

Circuit Court of Appeals, Eighth Circuit.

July 17, 1926.

Rehearing Denied August 30, 1926.

P. H. Cullen, of St. Louis, Mo. (Charles G. Revelle and Abbott, Fauntleroy, Cullen & Edwards, all of St. Louis, Mo., on the brief), for plaintiff in error.

John C. Dyott, Sp. Asst. Atty. Gen. (Mabel Walker Willebrandt, Asst. Atty. Gen., and Mahlon D. Kiefer, Sp. Asst. Atty. Gen., on the brief), for the United States.

Before STONE, KENYON, and BOOTH, Circuit Judges.

BOOTH, Circuit Judge.

January 19, 1925, there was returned into the District Court of the United States for the Eastern District of Missouri an indictment against plaintiff in error and Charles S. Prather, Raymond B. Griesedieck, and Griesedieck Bros. Brewery Company, charging them with conspiracy to violate the National Prohibition Act in manufacturing, transporting, and selling for beverage purposes beer containing more than one-half of 1 per cent. of alcohol by volume.

April 20, 1925, plaintiff in error duly made and filed an affidavit of personal bias or prejudice against one of the judges of said court, pursuant to section 21 of the Judicial Code (Comp. St. § 988). The affidavit was accompanied by the required certificate of counsel of record. They are as follows:

"In the District Court of the United States for the Eastern Division of the Eastern Judicial District of Missouri.

United States of America, Plaintiff, v. Heber Nations et al., Defendants. No. 10668.

"Now comes Heber Nations, who states that he is a party defendant to the above action or proceeding, and he doth make and file this affidavit in pursuance to section 21 of the Judicial Code.

"The said Heber Nations, defendant as aforesaid, on his oath states that the judge before whom this action is pending, to wit, Hon. C. B. Faris, has a personal bias or prejudice against him, and has a personal bias and prejudice in favor of the plaintiff, the United States of America, who is the opposite party to this action.

"Defendant says that he did not file this affidavit ten days before the beginning of the present term of court for the reason that knowledge of such bias and prejudice did not come to him until this date, and he avers that said absence of knowledge is good cause for his failure to file said affidavit, within ten days before the beginning of the present term of this court. This affidavit is accompanied by a certificate of counsel of record that said affidavit and application are made in good faith.

"The facts and reasons for the belief that such bias and prejudice exists are as follows, to wit: He is informed and believes that persons connected with the United States government and having a special interest in this prosecution have communicated to said judge what they alleged to be knowledge of facts and circumstances connected with the transactions averred in the indictment, and that as a result of said communication the said judge has an ill and unfriendly feeling against said defendant, and has formed an adverse opinion as to defendant's innocence, and now entertains the belief that there is no meritorious defense to the charge made against said defendant.

"And the defendant further says that he is informed and believes said judge has stated that it is his opinion and belief that this defendant has been and is guilty of having co-operated and conspired with others, including the Griesedieck Bros. Brewery Company, a corporation, and Chas. Prather, to unlawfully afford and give protection and assistance to said Griesedieck Bros. Brewery Company and other persons in unlawfully manufacturing, selling, transporting, and possessing intoxicating liquors in violation of the laws of the United States and removing and withdrawing from brewery premises intoxicating liquors without reducing the alcoholic content thereof below one-half of 1 per cent. of alcohol by volume.

"Heber Nations.

"State of Missouri, City of St. Louis — s. s.:

"Heber Nations, one of the defendants in the above-entitled cause, being duly sworn, upon his oath says that the statements contained in the above and foregoing affidavit are true according to his best knowledge, information, and belief, and the said affidavit is made for the purposes stated therein.

"Subscribed and sworn to before me this 20 day of April, 1925. Seal. Margaret M. Boyd, Deputy Clerk of the United States District Court, in and for the Eastern Division of the Eastern Judicial District of Missouri.

"We, the undersigned, Chas. G. Revelle and P. H. Cullen, counsel of record in the above-entitled cause, hereby certify that the above application made by said Heber Nations is made in good faith by him.

"P. H. Cullen. "Chas. G. Revelle."

Judge Faris, after hearing argument of counsel, on the day of the filing of the affidavit refused to take action for the designation of another judge, and set the case for trial on May 25, 1925. Exception was duly taken to this action of the judge.

On May 25th the case was taken up for trial before Judge Faris. All of the defendants pleaded not guilty. Later, the same day, defendants Charles S. Prather and Griesedieck Bros. Brewery Company changed their plea to guilty. Sentence was postponed. On motion of the government a severance was granted for a separate trial of defendant Raymond B. Griesedieck.

The trial of plaintiff in error resulted in a verdict of guilty. Sentence was pronounced of 18 months' imprisonment at Leavenworth and a fine of $3,333. Writ of error has brought the case here.

There are a large number of assignments of error. Two of them challenge the action of the judge in refusing to disqualify himself and to take steps for the designation of another judge to try the case upon the filing of the affidavit above set out.

Section 21 of the Judicial Code reads as follows:

"Whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein, but another judge shall be designated in the manner prescribed in the section last preceding, or chosen in the manner prescribed in section twenty-three, to hear such matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of the court, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any case to file more than one such affidavit; and no such affidavit shall be filed unless accompanied by a...