Rupert v. United States
| Decision Date | 05 March 1910 |
| Docket Number | 3,052. |
| Citation | 181 F. 87 |
| Parties | RUPERT v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
February 27, 1907, the grand jury of Blaine county, Okl. T., returned four indictments against defendant Rupert. In one case (No 43) the charging part of the indictment is: 'That on, to wit, the thirtieth day of November, in the year of our Lord one thousand nine hundred and five, in said county, and within the jurisdiction of said court, Paris N. Rupert, then and there being, did then and there, unlawfully, willfully and feloniously deliver to the Frisco Railroad Company, a common carrier, for transportation out of said territory and to the city of Chicago in the state of Illinois, the dead bodies of quail, which said quail had theretofore been killed in the Territory of Oklahoma in violation of the laws of said territory and with the intent and purpose of being shipped and transported out of said territory in violation of the laws of said territory. ' Except as to the date of the crime, and the railway to which the delivery was made, the indictment in case No. 45 is like that in case No. 43.
The charging part of the indictment in case No. 44 is as follows 'That on, to wit, the 30th day of November, in the year of our Lord, one thousand nine hundred and six, in said county, and within the jurisdiction of said court, Paris N Rupert, then and there being, did then and there unlawfully willfully and feloniously deliver to the Rock Island Railroad Company, a common carrier, to be shipped and transported by Interstate Commerce 139 boxes and packages containing the dead bodies of quail which had theretofore been killed in the territory of Oklahoma in violation of the laws of said territory, and with the intent and for the purpose of being shipped and transported out of the territory of Oklahoma and to the city of Chicago, in the state of Illinois, without having said boxes and packages plainly and clearly marked so that the address of the shipper and the nature and contents of the packages could be readily ascertained on the inspection of the outside of such boxes and packages.'
The indictment in case No. 46 is the same as that in case No. 44 except as to the number of boxes of quail, and the railway company to which delivered.
After Oklahoma was admitted as a state, the cases were remitted to the District Court of the United States for the Western district in that state. There were demurrers to the indictment, which were overruled, pleas of not guilty entered, and the four cases were consolidated for trial purposes. A jury trial resulted in a verdict of guilty in every of the four cases. Motions for new trial, and motions in arrest of judgment were overruled, and judgment of a fine of one hundred dollars and costs were imposed against the defendant in each case. A writ of error was sued out to reverse the judgments.
William O. Woolman (C. R. Buckner, on the brief), for plaintiff in error.
John Embry, U.S. Atty.
Before HOOK and ADAMS, Circuit Judges, and McPHERSON, District Judge.
SMITH McPHERSON, District Judge (after stating the facts as above).
The record contains that which purports to be the testimony, the charge of the court, instructions refused, objections rulings and exceptions, with recitals of what occurred during the trial, including motions for a new trial. None of these are evidenced by a bill of exceptions, and are, therefore, not of record. We cannot consider any of them. The office and necessity of a bill of exceptions in all actions at law and in criminal cases have long been recognized by the profession and required by all Appellate Courts. The practice, whatever it is, in Oklahoma as to bills of exceptions in actions at law and criminal cases, is of no effect here. The laws of the state do not control as to this. The common law, in conjunction with the United States Statutes, only must prevail. Michigan Insurance Bank v. Eldred, 143 U.S. 293, 298,
9 Sup.Ct. 690, 32 L.Ed. 1080; Fishburn v. R.R., 137 U.S. 60, 11 Sup.Ct. 8, 34 L.Ed. 585; The Chateaugay Company, Petitioner, 128 U.S. 544, 553, 9 Sup.Ct. 150, 32 L.Ed. 508. Revised Statutes of the United States, Sec. 953, as amended by Act June 5, 1900, c. 717, Sec. 1, 31 Stat. 270 (U.S. Comp. St. 1901, p. 696). Courts make the records, and the trial judge must sign the bill of exceptions. The clerk is without authority to certify up anything, except that made of record by the orders of the court.
It therefore follows that the only questions we can consider are those pertaining to the indictment. The demurrers are to the same effect as the motion in arrest of judgment. And the motion in arrest of judgment is the same in every of the four cases, and is as follows:
It appears from the foregoing that in two of the cases the indictments charge that the defendant willfully and unlawfully delivered quail to a railway company for transportation from points within Oklahoma to Chicago, Ill., which quail had theretofore been killed in Oklahoma in violation of the laws of said territory.
The indictments in the other two cases charge defendant with willfully and unlawfully delivering to a railway boxes containing the dead bodies of quail which had theretofore been unlawfully killed within the territory, which delivery was for the purpose of shipping said quail by interstate shipments, to wit, to Illinois, and without having the boxes marked showing the contents.
Section 3 of the act of Congress of 1900 (Lacey act) provides that it shall be unlawful to ship from one state or territory to another state or territory any animals or birds when such animals or birds have been killed in violation of the laws of the state. Act May 25, 1900, c. 553, 31 Stat. 188 (U.S. Comp. St. 1901, p. 3181).
The local laws of the territory of Oklahoma allowed quail to be killed during certain months (from October 15th to February 1st). But the Oklahoma statutes prohibited the exportation of quail at any time. Therefore it follows that it was unnecessary for the indictment to allege in which months the quail were killed. It was lawful to kill quail in the territory for use within the territory during three and one-half months of every year. But it was unlawful every day of the year to kill quail for shipment elsewhere. So...
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