Shelp v. United States

• Citation: 81 F. 694
• Decision Date: 07 June 1897
• Docket Number: 346.
• Parties: SHELP et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

81 F. 694

SHELP et al. v. UNITED STATES.

No. 346.

United States Court of Appeals, Ninth Circuit.

June 7, 1897

Lorenzo S. B. Sawyer, for plaintiffs in error.

Burton E. Bennett, U.S. Atty., and Samuel Knight, Asst. U.S. Atty.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge.

This appeal is taken from a judgment of the district court of Alaska upon the conviction of the plaintiffs in error (hereafter designated as 'defendants')of the crime of unlawfully selling intoxicating liquor. There are several assignments of error urged by counsel as being sufficient to justify a reversal of the judgment.

1. It is claimed by the defendants that the indictment is fatally defective because it does not negative the exceptions contained in the statute. The language of the indictment, in so far as it relates to this objection, is that the defendants 'did unlawfully and willfully sell to Alaska Indians * * * an intoxicating liquor called 'whisky,' * * * without having first complied with the law concerning the sale of intoxicating liquors in the district of Alaska.'

Section 14 of 'An act providing a civil government for Alaska,' under the provisions of which the defendants were indicted and convicted, reads as follows:

'That the provisions of chapter three, title twenty-three, of the Revised Statutes of the United States, relating to the unorganized territory of Alaska, shall remain in full force, except as herein specially otherwise provided; and the importation, manufacture, and sale of intoxicating liquors in said district except for medicinal, mechanical and scientific purposes is hereby prohibited, under the penalties which are provided in section nineteen hundred and fifty-five of the Revised Statutes for the wrongful importation of distilled spirits. And the president of the United States shall make such regulations as are necessary to carry out the provisions of this section.' 23 Stat 28; Rev. St. Sec. 1955.

In U.S. v. Nelson, 29 F. 202, 209, and in the same case on writ of error to the circuit court of Oregon, 30 F. 112, 115 a similar indictment, which did not negative the exceptions in the statute, was held to be sufficient.

The exception stated in the statute does not either define or qualify the offense created by the statute. The offense designated in the statute is the sale of intoxicating liquors in Alaska. This can be properly stated without any reference to the exception. There is nothing in the exception that enters into the offense condemned by the statute. The exception is purely a matter of defense, which, if relied upon, could readily have been proven by the defendants. A careful examination of the authorities will show that it is only necessary in an indictment for a statutory offense to negative an exception to the statute when that exception is such as to render the negative of it an essential part of the definition or description of the offense charged. It is the nature of the exception, and not its locality, that determines the question whether it should be stated in the indictment or not. State v. Ah Chew, 16 Nev. 50, 54, and authorities there cited; U.S. v. Cook, 36 F. 896; U.S. v. Cook, 17 Wall 168, 173; State v. Van Vliet (Iowa) 61 N.W. 241; Bell v. State (Ala.) 15 So. 557. The court did not err in refusing the motion in arrest of judgment.

2. It is contended that the court erred in allowing certain witnesses to testify on behalf of the government whose names were not indorsed upon the indictment, for the reason that no list containing the names of such witnesses was furnished to the defendants or their counsel. The statute of Oregon, the provisions of which are applicable to cases tried in the district court of Alaska, only requires that 'the names of the witnesses examined before the grand jury must be inserted at the foot of the indictment or endorsed thereon. ' Gen. Laws Or. 1843-1872, p. 348, Sec. 61. This statute was fully complied with. The statute of the United States provides that, when a party is indicted for treason, a copy of the indictment and a list of the jury and of the witnesses to be procured at the trial, stating the place of abode of each juror and witness, shall be furnished to such person three days before the trial. In other capital cases the list must be furnished two days before the trial. Rev. St. Sec. 1033. This statute has no application to this case. There is not statute which requires a list of the witnesses to be furnished to a person indicted for a misdemeanor. If the indictment is not for a capital offense, the defendant is not entitled, as a matter of right, to a list of witnesses or jurors. U.S. v. Wood, 3 Wash.C.C. 440, Fed. Cas. No. 16,756; U.S. v. Williams, 1 Cranch, C.C. 178, Fed. Cas. No. 16,709; U.S. v. Van Duzee, 140 U.S. 169, 173, 11 Sup.Ct. 758, and authorities there cited.

3. It is claimed that there was such misconduct on the part of the United States attorney as to entitle defendants to have the judgment reversed. In his argument to the jury he said:

'That 'the result of the acts with which the defendants were charged was that a murder had been committed, and that the Indian who had committed the murder was in the penitentiary at San Quentin for such crime,' although no evidence whatever had been introduced of any murder having been committed; and further stated to the jury that 'the defendants went to the Indian village of Hoona, and sold whisky there,' although the defendants were not charged in said indictment with selling liquor at Hoona, and although there was no evidence that defendants had stopped at Hoona or sold liquor there.'

And, further, he said:

''If these defendants were the good and innocent men that they try to make themselves out, why did they not bring witnesses to testify to their good character?' although their character had not been put in issue.'

It is a sufficient answer to this claim to state that no objection was made to the remarks of counsel at the trial, and no exception taken thereto. If the statement of counsel was improper, exception thereto ought to have been promptly taken. The question whether the remarks of counsel were improper cannot be considered by this court in a case where the point was not raised or exception taken until after the trial. It is undoubtedly within the power of the trial court, with or without objection, to promptly interfere when counsel attempt to influence the jury by a reference to facts not in evidence, or makes any appeal to prejudice the jury dehors the record, or comments upon the character of the defendant when his character has not been put in issue. But the rule is well settled that improper remarks of counsel not made the subject of an exception will not be considered on appeal. State v. Regan, 8 Wash. 506, 511, 36 P. 472; State v. Foster, 115 Mo. 451, 22 S.W. 468; State v. Howard, 118 Mo. 127, 146, 24 S.W. 41; Hill v. State, 42 Neb. 505, 528, 60 N.W. 916; State v. Sorter, 52 Kan. 531, 34 P. 1036; Com. v. Weber, 167 Pa.St. 153, 162, 31 A. 481; State v. Hilsabeck (Mo. Sup.) 34 S.W. 39; Harvey v. State (Tex. Cr. App.) 34 S.W. 623, 625; Campbell v. People, 109 Ill. 566, 577.

4. It is assigned as error that the evidence was insufficient to justify the verdict of the jury. This point was not urged by any argument, and is utterly devoid of merit. There was positive testimony as to the commission of the crime by defendants, which, if believed by the jury to be true, certainly justified the verdict, as will more fully appear hereafter.

5. The next error assigned in that the court erred in its charge to the jury. In order to fully understand the parts of the charge objected to, it is essential to state briefly the general character of the testimony at the trial.

One Indian witness, on behalf of the government, testified as follows:

'My name is Dennis. I live at Chilkoot. * * * I know these defendants, * * * Their boat was anchored off the shore. The younger man (meaning the defendant Cleveland) waved his hat to me; picked up a keg; then drank out of a tin cup. When I came to their boat, they gave me whisky to drink, and told me to tell the other people at the village that they had plenty of whisky. I went and told at the village, and 12 of us came down in a canoe, and got whisky from the white men. I got two bottles and paid four ($4) for it.'

Several other Indians testified substantially to the same effect.

The defendants testified that they resided at Douglas; that on the 12th of August, 1894, they started on a prospecting expedition in a sloop; that they went to Bear Creek, on Douglas Island; that they left there, and arrived at Bartlett Bay on the 18th; left there on the 19th, and arrived at Hoona Sound on the 20th; and stayed there, prospecting around the sound, for 8 or 10 days.

The defendant Shelp, in the course of his testimony, said:

'I was never at Chilkoot in my life. I never saw, to my knowledge, any of the Indians who testified in this case. We had no whisky on board of our sloop; neither sold nor gave away any whisky to Indians.'

It is also necessary to consider what was said by defendants' counsel in the argument to the jury, for it is evident that some of the sentences objected to in the charge were given by the court in reply thereto. In discussing the weight to be given to the evidence by the jury, one of the defendants' attorneys said:

'That the evidence of ignorant, half-civilized barbarians, whose moral and religious sense was not developed, and who did not understand and appreciate the binding force of an oath as understood by Christian people, and who had little or no appreciation of our religious ideas, from which the oath gets its binding force and efficacy, and who had no appreciation of

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