Reynolds v. United States, 320.

• Decision Date: 01 April 1931
• Docket Number: No. 320.,320.
• Citation: 48 F.2d 762
• Parties: REYNOLDS v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

48 F.2d 762 (1931)

REYNOLDS v. UNITED STATES.

No. 320.

Circuit Court of Appeals, Tenth Circuit.

April 1, 1931.

T. H. Davidson, of Muskogee, Okl., for appellant.

W. F. Rampendahl, Asst. U. S. Atty., of Muskogee, Okl.

Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.

COTTERAL, Circuit Judge.

The appellant complains of a conviction and sentence upon an indictment which charged him with the unlawful possession of whisky in Seminole county, Okl., where prior to statehood the act was prohibited by federal law.

One of the assignments of error challenges the validity of the Act of June 30, 1919, 41 Stat. 4 (25 USCA § 244), on which the indictment was based. But the act was upheld by this court in Hodges et al. v. United States, 36 F.(2d) 356. That decision is undoubtedly sound, and we adhere to it.

The remaining assignments of error are predicated on certain proceedings which occurred at the trial alleged to have been prejudicial to the appellant, alleged error in the charge to the jury, and the refusal of a motion for a new trial.

The sheriff of Okfuskee county and two deputies testified that they visited the home of defendant near Seminole and found a quantity of whisky in his garage. The defendant testified he had no knowledge of whisky on the premises. His witness Bill Grammar testified he obtained the whisky at Holdenville, took it to defendant's garage when he was absent, and he had not seen the defendant since 1927. At this point the court stated it was probably his duty to warn the witness as to his immunity, and, pursuant to agreement of the defendant's attorney, the court advised the witness that, if he incriminated himself, it would be the duty of the court to direct the officers after he left the stand to take him into custody, and then inquired of him whether he wished to testify he took the whisky to the place. The witness then repeated his statement, and gave other details of the transaction. At the close of his testimony, the court said: "Have him taken into custody either for possession and transportation of whisky or perjury, whichever the facts warrant."

A portion of the charge was to the effect that "any statement of the court made to counsel or to any of the witnesses during the trial of this case are not to be considered by the jury," that Grammar was guilty under his own statement of perjury or violating the prohibition laws, and that he was warned he would be held for investigation, but that was not to prejudice the defendant's case.

No exception was taken to the trial incidents, the charge, or the overruling of a motion for a new trial. Generally, errors in trial proceedings not saved by exception will not be reviewed on appeal. But where the life or liberty of a defendant is at stake, they may be considered, when serious and fatal to his rights. Wiborg v. United States, 163 U. S. 632, 16 S. Ct. 1197, 41 L. Ed. 289; Gillette v. United States (C. C. A.) 236 F. 215; Edwards v. United States (C. C. A.) 7 F.(2d) 357; Crawford v. United States, 212 U. S. 183, 29 S. Ct. 260, 53 L. Ed. 465, 15 Ann. Cas. 392; Brasfield v. United States, 272 U. S. 448, 47 S. Ct. 135, 71 L. Ed. 345; Feinberg v. United States (C. C. A.) 2 F.(2d) 955; Lamento v. United States (C. C. A.) 4 F.(2d) 901; Bogileno v. United States (C. C. A.) 38 F.(2d) 584. We may assume that the...