Speak v. United States, 3462.

• Decision Date: 07 May 1947
• Docket Number: No. 3462.,3462.
• Citation: 161 F.2d 562
• Parties: SPEAK v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

161 F.2d 562 (1947)

SPEAK v. UNITED STATES.

No. 3462.

Circuit Court of Appeals, Tenth Circuit.

May 7, 1947.

David H. Morris, of Denver, Colo., for appellant.

Thomas J. Morrissey, U. S. Atty., of Denver, Colo. (Joseph N. Lilly, Asst. U. S. Atty., of Denver, Colo., on the brief), for appellee.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

HUXMAN, Circuit Judge.

Appellant, Paul Speak, was charged, together with Blaine L. Evans, in an information with selling and offering for sale automobiles in excess of the ceiling price, as fixed by Maximum Price Regulation 540, as amended. He was found guilty and has appealed from the verdict and judgment of the court. The information, omitting Paragraph 1, which is not material to the issues presented herein, is as follows:

"(Selling automobile above ceiling price in violation of Emergency Price Control Act of 1942 50 U.S.C.A.Appendix, § 901 et seq., and Stabilization Act of 1942, as amended by the Stabilization Extension Act of 1944, and Maximum Price Regulation No. 540, as amended.)

* * * * * *

"2. That, on or about the 23rd day of March, 1946, the defendants, Paul Speak and Blaine L. Evans, unlawfully sold to Captain Enoch Row a used 1941 Buick Sedanette automobile, model 40 D, Series 46S, Motor No. 44423995, for the sum of One Thousand Seven Hundred Seventy-six Dollars and Fourteen Cents ($1,776.14). That, at all times herein mentioned, the ceiling price on said used 1941 Buick Sedanette automobile, Motor No. 44423995, as fixed by Maximum Price Regulation 540, as amended, was One Thousand Three Hundred Thirty-three Dollars and Fourteen Cents ($1,333.14). Said sale was in violation of Article I, Section 2(1) of M.P. R. 540, as amended."

The first assignment urged is that the trial court erred in refusing to sustain appellant's motion to dismiss the amended information. It is claimed that the information failed to state an offense because it was so general and indefinite that it failed to apprise appellant with the exact nature of the offense with which he was charged. This contention is without merit. Rule 7(c) of the Rules of Criminal Procedure, 18 U.S.C.A. following section 687, provides in substance that the indictment or information shall be a plain, concise and definite statement of the essential facts constituting the offense charged; that it need not contain any matter not necessary to such statement; that it shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged to have violated, and that error or omission in the citation shall not be ground for dismissal or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice. The information informed appellant that he was charged with selling to Captain Enoch Row on March 23, 1946, a 1941 Buick Sedanette automobile, Model 40D, Series 46S, Motor No. 44423995, for the sum of $1,776.14, whereas at the time the maximum ceiling price on the same, as fixed by Price Regulation 540, as amended, was $1,333.14. There is no uncertainty here as to the offense with which appellant was charged. A verdict rendered in this case would be a complete defense as to any future attempt to prosecute appellant for an alleged sale of the same automobile. The information complied with the rule which requires that it state the offense, that it set out the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged to have violated. This is set out in concise form in the caption of the information, as well as in the concluding paragraph, which charges him with violation of Article 1, Sec. 2(1) of M.P.R. 540, as amended. We fail to see what more could have been set out, but, in any event, if there were any details to which appellant was entitled, the lack thereof did not go to the validity of the information. They could have been furnished, if required, by a bill of particulars.

Complaint is made that the court erred in the examination of prospective jurors by refusing to submit interrogatories proffered by appellant's attorney. Rule 24 of the Rules of Criminal Procedure provides that the court may itself examine the jury or permit the defendant or his attorney to examine them. It provides that in the event the court examines the jury, the court shall permit the defendant or his attorneys and attorneys for the government to supplement the examination by such further inquiry as it deems proper, or shall itself submit to the jurors such additional questions by the parties or the attorneys as it deems proper. This rule vests the trial court with discretion in the examination of prospective jurors, and the exercise of this discretion will not be disturbed in the absence of a clear showing of abuse thereof.¹ Some of the proposed questions were clearly improper. Others were acceptable, and some of these were asked by the court. Others the court refused to propound to the jurors. It may be that the substance of the questions which were refused by the court was covered in its own examination of the jurors. Since the entire examination of the jurors by the court is not set out in full in the record, we cannot say as a matter of law that the court abused its discretion in refusing to submit the proffered questions.

It is also urged that the court became an advocate for the government. We have carefully examined the record and it is sufficient to say that this contention is so wholly without merit that an extended discussion in support of this conclusion would serve no useful purpose.

Complaint is also made that the trial court erred in admitting incompetent evidence, prejudicial to appellant. The government offered two witnesses to prove its case, Captain Enoch Row, who purchased the car, and Sgt. Harry L. Garner. Row testified that he paid appellant eighteen one-hundred dollar bills for the car. Garner's testimony was offered to prove that he saw the payment of the money. On direct examination he testified that he saw Row lay eighteen one-hundred...