Peters v. United States, 13111.

• Decision Date: 13 June 1947
• Docket Number: No. 13111.,13111.
• Citation: 161 F.2d 940
• Parties: PETERS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

161 F.2d 940 (1947)

PETERS v. UNITED STATES.

No. 13111.

Circuit Court of Appeals, Eighth Circuit.

June 13, 1947.

John A. Burns and O. A. Blanchard, both of St. Paul, Minn., for Cloyce Henry Peters, appellant.

William P. Murphy and James J. Giblin, Asst. U. S. Attys., and Victor E. Anderson, U. S. Atty., all of St. Paul, Minn., for appellee.

Before THOMAS, JOHNSEN, and RIDDICK, Circuit Judges.

PER CURIAM.

In the trial court and in his briefs and argument on appeal, appellant Peters asserted and sought to establish a right of immunity under the provisions of 50 U.S. C.A.Appendix, § 922(g), section 202(g) of the Emergency Price Control Act of 1942. His contentions under that statute having been decided adversely to him on their merits, both in the trial court and here, he now seeks in a petition for rehearing to shift his position and asks to have his immunity right examined and passed upon in relation to the provisions of 50 U.S.C.A. Appendix, § 633(4), section 301, of the Second War Powers Act, 1942.

His petition for rehearing says in effect that he was mistaken in ever having attempted to invoke the immunity provisions of the Emergency Price Control Act and that he should have relied upon the immunity provisions of the Second War Powers Act. This is so, he says, because the powers of the Office of Price Administration, in the rationing of tires, were derived from the Second War Powers Act and not from the Emergency Price Control Act.

Even though this contention be correct, appellant is not entitled as a matter of right, at the stage which now has been reached, to have the case remanded and reopened and the issue of immunity retried in relation to a different statute than that on which he chose to predicate his rights in the trial proceedings and again on the hearing and submission of his appeal. He has had a trial on every issue and theory that he and his skilled counsel elected to present at the time. He has had a review of all the rulings made by the trial court upon his contentions.

Beyond this, in considering whether our discretionary power should be exercised in the situation, there is the circumstance that the evidence is utterly conclusive of appellant's guilt. He was the hub of the conspiracy, and the other defendants were largely spokes. Without his conviction, one may well doubt whether the jury would have held the other defendants. All the convictions were reviewed and affirmed together. The other defendants have since entered upon the service of their sentences. Now, after this has transpired, appellant seeks to shift his position through the filing of this petition for rehearing.

But notwithstanding all these considerations, we should be inclined to permit appellant's case to be reopened, if we believed that he had an absolute right of immunity under the provisions of the Second War Powers Act. He is not able here, however, to demonstrate any such right. Immunity could in no event exist, unless the District Court should find certain...