Raarup v. United States

• Decision Date: 30 January 1928
• Docket Number: No. 5100,5071.,5100
• Citation: Raarup v. United States, 23 F.2d 547 (5th Cir. 1928)
• Parties: RAARUP v. UNITED STATES. SMYTHE v. SAME.
• Court: U.S. Court of Appeals — Fifth Circuit

23 F.2d 547 (1928)

RAARUP v. UNITED STATES.^*

SMYTHE v. SAME.

Nos. 5100, 5071.

Circuit Court of Appeals, Fifth Circuit.

January 30, 1928.

George B. Smart, Geo. D. Smart, and John B. Murphy, all of New Orleans, La. (Finnorn & Murphy, of New Orleans, La., on the brief), for plaintiff in error Raarup.

T. S. Walmsley, of New Orleans, La., for plaintiff in error Smythe.

Wayne G. Borah, U. S. Atty., of New Orleans, La.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

The indictment in this case against Osa J. Smythe, Walter P. Raarup, and two other persons contained four counts; the first and second counts charging the accused with feloniously taking and carrying away a quantity of fuel oil and other property from two named steamships, both the property of the United States. Smythe and Raarup were convicted under the first and second counts. Each of them sued out a writ of error. In behalf of Smythe, complaint is made of the action of the court in permitting H. V. Gulley, a witness for the government, who was present in the courtroom while previously examined witnesses gave their testimony, to testify, on the ground that the court had excluded all witnesses from the courtroom until called for examination; of the admission in evidence of a written instrument purporting to be a confession subscribed by Smythe; and of the refusal to give the following charge requested by him: "A confession, to be admissible in evidence, and one which the jury can possibly consider, must be free and voluntary, and not one extracted from the accused by long and diligent cross-questioning and examination by third degree methods." In behalf of Raarup complaint is made of the refusal of the court to grant his motion for a severance, and of the overruling of his motion to direct a verdict of acquittal.

The record shows that, by the action of the court in excluding Gulley from the rule requiring witnesses to remain out of the courtroom until called to testify, Gulley was permitted to remain in the courtroom while other witnesses were testifying. That action was within the court's discretion, and the record does not show that it involved an abuse of discretion.

The admission in evidence of the written instrument purporting to be a confession by Smythe was objected to, not on the ground that the confession was not shown to have been made freely and voluntarily, but on the ground that three of the four typewritten pages constituting that instrument were...