Ross v. United States, 8856.
| Decision Date | 24 February 1939 |
| Docket Number | No. 8856.,8856. |
| Citation | 102 F.2d 113 |
| Parties | ROSS v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
R. M. Crookshank, of Santa Ana, Cal., and Russell Graham, of Los Angeles, Cal., for appellant.
Ben Harrison, U. S. Atty., and Norman W. Neukom, Asst. U. S. Atty., both of Los Angeles, Cal.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
Appellant was indicted on March 23, 1938, in an indictment on seven counts for violations of Section 211 of the Criminal Code, as amended, 18 U.S.C.A. § 334. Appellant was found guilty on the first four counts and not guilty on counts five and seven. Count six was dismissed on motion of the prosecution.
The following recital appears in a document entitled "Bill of Exceptions" which is printed in the transcript before this court:
The "Bill of Exceptions" does not contain any of the mentioned documents recited to have been introduced in evidence, nor does it set out any other evidence relating to said "special plea". In the transcript filed with this Court there are printed, but not as part of the "Bill of Exceptions", several documents. Among them are, a document entitled "Plea of Defendant In re Double Jeopardy"; a document entitled "Indictment, No. 13398-J"; a document purporting to be an order of the District Court in No. 13,398-J Crim. continuing said cause for setting for trial on defendant's plea of not guilty; a document entitled "No. 13,398-J Crim. Verdict"; and an order of the District Court in the present cause denying defendant's plea of former jeopardy and granting to defendant an exception to said ruling.
The "Plea of Defendant In Re Double Jeopardy" alleges a formal trial and acquittal of defendant in the District Court on an indictment entitled "U. S. v. Lecil E. Ross, No. 13,23?98-J". It further alleges that the offense of which defendant was tried and acquitted "is the same offense of which the defendant is now charged by the indictment herein". The remaining documents above listed are printed in the transcript in the order named and next following the said "Plea". It does not appear that any of them were attached to said plea as exhibits or otherwise made a part thereof. All of the documents mentioned have been certified to us by the clerk of the District Court.
One of appellant's contentions before this Court is that it was error to deny his "plea of former acquittal". In the present state of the record it is not possible for us to consider this point because the evidence necessary to its determination is not before us.
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