Sartain v. United States

• Decision Date: 03 January 1927
• Docket Number: No. 4733.,4733.
• Citation: 16 F.2d 704
• Parties: SARTAIN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

16 F.2d 704 (1927)

SARTAIN et al. v. UNITED STATES.^*

No. 4733.

Circuit Court of Appeals, Fifth Circuit.

January 3, 1927.

Hooper Alexander, of Atlanta, Ga., and James N. Linton, of Columbus, Ohio, for plaintiffs in error.

Clint W. Hager, U. S. Atty., of Atlanta, Ga. (R. M. Cook, Asst. U. S. Atty., of Atlanta, Ga., on the brief), for the United States.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

Albert E. Sartain and Lawrence Riehl, plaintiffs in error, were charged with conspiring with each other and with Looney J. Fletcher and Thomas P. Hayden to receive bribes of $1,500 from each of seven named persons, who were to be confined as prisoners in the federal penitentiary at Atlanta, Ga., to influence their official action in granting said prisoners certain special privileges, in violation of section 117, Penal Code (Comp. St. § 10287). Sartain was the warden of the said penitentiary, and Fletcher a deputy warden, while Hayden was one of the chaplains. Riehl had no official connection with the institution. Hayden was not included in the indictment as a defendant, Fletcher was acquitted, and Sartain and Riehl were convicted. The record is voluminous, purporting to contain all the evidence heard upon the trial, although it does not appear that any motion to direct a verdict was made which would warrant our examination of it.

There are 24 assignments of error covering 14 printed pages of the record. The third to the twenty-fourth assignments, inclusive, run on the rejection or admission of evidence. These assignments are in general terms, with but slight identification of the testimony admitted or excluded. Our rule 11 requires that, when the error alleged is to the admission or rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted or rejected. Errors not assigned according to the rule will be disregarded, although, of course, the court may at its option notice a plain error not assigned. The above-mentioned rule is not a mere matter of form, as we have repeatedly pointed out.

Regarding assignments of error, in Phillips, etc., Construction Co. v. Seymour et al., 91 U. S. at page 648, 23 L. Ed. 341, the court said:

"The object of the rule requiring an assignment of errors is to enable the court and opposing counsel to see on what points the plaintiff's counsel intend to ask a reversal of the judgment, and to limit the discussion to those points. This practice of unlimited assignments is a perversion of the rule, defeating all its purposes, bewildering the counsel of the other side, and leaving the court to gather from a brief, often as prolix as the assignments of error, which of the latter are really relied on. We can only try to respond to such points made by counsel as seem to be material to the judgment which we must render."

To try to give effect to the assignments in this case would require an examination of the entire record, page by page and line by line, with but small hope of even then identifying what was objected to. This we do not feel called upon to do.

But three errors were argued at the hearing. The best we can do is to consider those in the light of the arguments and briefs, with such aid as we may derive from an examination of the record.

Plaintiffs in error contend that they were denied a continuance and forced to trial too soon after indictment; that this was an abuse of discretion in the trial court and greatly prejudiced their defense. It appears that the indictment was returned on January 28, 1925, and the trial was begun on February 9, 1925. The verdict was rendered on February 20, 1925. It was stated in argument, and not denied, that at the time the indictment was returned defendants were under indictment in other cases in the same court, and had given bond for their appearance, and that copies of the indictment were promptly furnished them when it was returned. It is not shown that they were deprived of the opportunity to secure any witness who might have tended to support the defense, nor is it shown that they suffered in any way, except that it might be inferred counsel would have preferred more time in which to prepare for trial. The granting or refusing of a continuance is largely within the discretion of the trial court, and we do not find that there was any abuse of discretion in this case.

In the course of the trial a witness, Willie Haar, one of those named as having paid $1,500 in furtherance of the conspiracy charged, testified to another transaction in which he had loaned $5,000 to Sartain, which money was in turn transmitted to Riehl. It is not disputed by plaintiffs in error that evidence of other similar transactions may be shown to prove intent in trials for conspiracy, but it is contended that this transaction was innocent and merely a loan. At the time the loan was made, Haar was incarcerated in the penitentiary, and he testified that the warden sent for him and asked for the loan, that he made it, and that it had never been...