Paoni v. United States

• Decision Date: 29 June 1922
• Docket Number: 2885.
• Citation: 281 F. 801
• Parties: PAONI et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

281 F. 801

PAONI et al. v. UNITED STATES.

No. 2885.

United States Court of Appeals, Third Circuit.

June 29, 1922

Clarence P. Sterner and John F. McEvoy, both of Philadelphia, Pa., for plaintiffs in error.

Robert V. Bolger and George W. Coles, both of Philadelphia, Pa., for the United States.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY Circuit Judge.

This writ brings»here for review a record which is so abridged that it discloses little of what transpired at the trial. The bill of exceptions contains merely a stipulation of counsel on twelve points, and two affidavits setting forth matter to which the affiants would have testified had they been called as witnesses. The stipulation is in substance as follows:

The two defendants, with others, were indicted on June 6, 1921, for violations of the Harrison Anti-Narcotic Act. 38 Stat. 785 (Comp. St. Secs. 6287g-6287q). Although counsel are charged in some measure with the duty of watching the criminal calendar of the District Court, a practice has grown up in the office of the United States Attorney for that office to notify counsel by mail of the dates of the trial of their causes. The chief clerk of the United States Attorney testified that on June 16 notice was mailed to counsel for defendants that this case would come on for trial on June 22. On the morning of that day the case was called. The defendants were present but their counsel was absent. The jury was drawn and sworn and the case continued until the afternoon to give the defendants an opportunity to find their counsel and procure the attendance of their witnesses. Counsel appeared in the afternoon and promptly moved for a continuance upon the ground that he had not received notice that the case was listed for trial on that day and that he was unable properly to present his clients' case owing to insufficient time in which to procure the attendance of witnesses. One of the defendants testified that he had received notice of the trial on the previous evening and had communicated the information to his codefendants and bondsmen. The court overruled the motion for a continuance and the trial proceeded. Whether an exception was noted does not appear. The defendants were found guilty and sentenced. Later, the court denied a motion for a new trial based on the somewhat enlarged ground that the defendants had not been afforded a fair trial inasmuch as neither they, their bail nor their counsel had been advised of the trial in time to prepare their defense or to take out subpoenas to procure the attendance of witnesses. This writ followed, and, enlarging the grounds still further, was rested on two assignments of error: First, the selection of a jury in the absence of the defendants' counsel; and second, the court's refusal of the motion for a continuance upon the ground just stated in the motion for a new trial.

In reviewing this highly unsatisfactory record, we lay aside two contentions as untenable. The first is that the defendants were forced into trial without time for their counsel to prepare a defense. Obviously there is nothing in this, for counsel had from April 11 to June 22 in which to prepare for trial and had actually prepared for trial by finding two witnesses, who, had they been summoned, would have appeared and testified. The second is the selection of a jury in the absence of counsel. Though such action might in a given case involve error, this is not such a case, because the objection appears for the first time on this...