Nolan v. United States, 13498.

• Decision Date: 30 October 1947
• Docket Number: No. 13498.,13498.
• Citation: 163 F.2d 768
• Parties: NOLAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

163 F.2d 768 (1947)

NOLAN v. UNITED STATES.

No. 13498.

Circuit Court of Appeals, Eighth Circuit.

October 14, 1947.

Rehearing Denied October 30, 1947.

Irving R. Brand, (oral argument permitted by court) of Minneapolis, Minn. (Irvin E. Schermer (appointed by court) of Minneapolis, Minn., on the brief), for appellant.

P. W. Lanier, U. S. Atty., of Fargo, N. D., for appellee.

Before SANBORN, THOMAS, and JOHNSEN, Circuit Judges.

THOMAS, Circuit Judge.

The appellant, George Nolan was indicted, tried and convicted on a charge of first degree murder committed on land belonging to the United States in the city of Devils Lake, North Dakota. The crime was committed in June, 1924. He was tried in November, 1933, and sentenced to life imprisonment December 1, 1933. On appeal to this court his sentence was affirmed January 2, 1935. Nolan v. United States, 8 Cir., 75 F.2d 65.

On August 5, 1946, Nolan filed a motion in the district court to vacate the judgment. On October 15, 1946, an order was entered dismissing the motion, and he appeals.

By his motion to vacate the judgment and by his contentions in this court the appellant assails the jurisdiction of the district court which tried and sentenced him on three grounds:

1. That the grand jury which returned the indictment on which he was tried and convicted was without legal existence;

2. That the sustaining of a demurrer to a former indictment for the same offense was a bar to prosecution under the indictment under which he was convicted; and

3. That the conviction was void because he was denied the right of a speedy trial in violation of his rights under the Sixth Amendment to the Constitution.

The first of these contentions challenging the legal existence of the grand jury is bottomed upon appellant's interpretation of § 284 of the Judicial Code, 28 U. S.C.A. § 421, which provides that

"No grand jury shall be summoned to attend any district court unless the judge thereof, in his own discretion or upon a notification by the district attorney that such jury will be needed, orders a venire to issue therefor. * * *"

The record of the district court shows an order dated August 16, 1933, directing the clerk of the court and the jury commissioner to draw and summon 27 persons to appear and serve as grand jurors at a term of court to be held at Fargo, North Dakota, on September 5, 1933, and that a venire issue returnable at that date. This order was not signed by the judge, and for this reason it is argued that the grand jury which was drawn, served and returned the indictment in question had no legal existence. The record also shows that the clerk and the jury commissioner reported to the court on August 21, 1933, that they had drawn the grand jury "in obedience to the order of the Court for drawing grand jurors * * *." The report sets out the names and residences of the persons drawn. At the bottom of the report an order was entered reading:

"On reading the foregoing report it is ordered that the same be filed and entered with this order upon the minutes of the Court.

"(signed) Andrew Miller "Judge."

Appellant cites no authority to sustain his contention that the failure of the judge to sign the order rendered the order null or the grand jury illegal. There is no claim of prejudice, or that any of the grand jurors were disqualified. The statute, it will be observed, does not require the order to be in writing and signed by the judge. Further, the report of the clerk and of the jury commissioner shows on its face that the grand jury was summoned in obedience to the order of the judge and the approval of the report having been signed by the judge there can be no doubt that the order was made by the judge. We are justified at least in so assuming. Reuben v. United States, 7 Cir., 86 F.2d 464, 470. Again, "in enacting this statute, Congress had no intent to legislate as to the validity of indictments. The purpose was merely to prevent the expense of having a grand jury unnecessarily summoned." Morris v. United States, 5 Cir., 128 F.2d 912, 916, certiorari denied, 317 U.S. 661, 63 S.Ct. 60, 87 L. Ed. 531; Breese v. United States, 4 Cir., 203 F. 824, 828. Moreover, the motion to vacate the judgment on the ground of any irregularity in the summoning of the grand jury comes too late when filed, as in this instance, nearly 13 years after the trial and conviction, and no excuse is shown for not raising the objection before pleading to the indictment. In the present instance, Nolan was represented by able counsel when his plea was entered; and he does not allege that the records of the court were not then available to him. United States v. Gale, 109 U.S. 65, 3 S.Ct. 1, 27 L.Ed. 857; Breese v. United States, 226 U.S. 1, 33 S.Ct. 1, 57 L.Ed. 97; Moffatt v. United States, 8 Cir., 232 F. 522, 529.

The appellant's second contention, that the prosecution was barred by the order sustaining a demurrer to a former indictment for the same offense, was raised for the first time by the motion to vacate the judgment.

The record shows that on May 24, 1929, an indictment was returned by a grand jury charging that Nolan and five others committed the murder charged in the indictment on which Nolan was tried in 1933. On June 3, 1933, Nolan's attorney demurred to the indictment on the grounds "1. That said indictment does not state facts sufficient to charge a public offense or crime; 2. That the specifications contained in said indictment do not support the charge; and 3. * * * that the defendant has been denied a speedy trial contrary to the Sixth Amendment to the Constitution."

The demurrer having been argued, the court "Ordered that said demurrer be * * * sustained, and the same dismissed as to George Nolan." The order then concluded:

"It appearing to the Court that there is reasonable cause to believe that the defendant George Nolan is guilty of the charge of murder, it is

"Ordered that he be held without bail to await the action of the next grand jury."

The court filed no opinion and stated no specific ground for sustaining the demurrer.

Appellant bases his contention on the fact that the indictment upon which he was tried differed from the first indictment in only two substantial respects, namely, that the second indictment omitted the names...