Talmadge v. United States

• Decision Date: 13 February 1925
• Docket Number: No. 3477.,3477.
• Citation: 4 F.2d 378
• Parties: TALMADGE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

4 F.2d 378 (1924)

TALMADGE et al. v.UNITED STATES.^*

No. 3477.

Circuit Court of Appeals, Seventh Circuit.

December 20, 1924.

Rehearing Denied February 13, 1925.

Edward M. Seymour, of Chicago, Ill., for plaintiffs in error.

Harry F. Hamlin, of Chicago, Ill., for defendant in error.

Before ALSCHULER and PAGE, Circuit Judges, and CARPENTER, District Judge.

PAGE, Circuit Judge.

Plaintiffs in error, Ellis C. Talmadge and George De Witt Talmadge, with numerous other persons, of whom one died, two pleaded guilty, and another obtained a separate trial, were charged, in an indictment containing seven counts, with a scheme to defraud under section 215 of the Revised Statutes(Comp. St. § 314).There was a conviction on counts 1, 2, 3, 5, and 6.

Of the 15 assignments of error, the first, refusal to grant a new trial, is not assignable as error.

It is urged that the demurrers to the indictment should have been sustained.The complaint seems to be that the counts of the indictment do not state sufficient detail to show the crime charged or to acquaint the accused with what they must meet on the trial.A reading of the first count discloses that the matters charged against the defendants are set out in great detail therein.In each of the succeeding counts, the details of the first count are adopted, and further special matters and allegations are set out.It is not pointed out just how either defendant was deceived or misled by any failure of allegation in any count, and we are of opinion that each count of the indictment upon which there was a conviction is sufficient to fully advise the defendants of the crime charged.

The fourth and fifth assignments cover the rejection of proper evidence and the admission of improper evidence.Rule 11 of this court provides: "When the error alleged is to the admission or to the rejection of evidence, the specification of the error shall quote the full substance of the evidence admitted or rejected."This rule was wholly uncomplied with.The rule further provides that in case of failure to comply, counsel will not be heard and the assignment will be disregarded.A search of the record fails to disclose any action on evidence either admitted or rejected that would injuriously affect the rights of plaintiffs in error.

Assignments 6 and 7 set out the refusal to grant a continuance because attorney for plaintiffs in error was engaged in the trial of another case.The court was clearly right in denying the motion.The indictment was returned into court in March, 1922.On May 13, 1922, Robert E. Tierney entered his appearance as attorney for plaintiffs in error.On November 21, 1922, Everett Jennings and Edward M. Seymour entered their appearance as attorneys for plaintiffs in error.Mr. Seymour's name is upon their brief, and he has argued the case orally, and it does not appear that either Jennings or Tierney had withdrawn their appearance.The basis of the application for continuance was that James R. Howe, defendants' principal attorney, was engaged in the trial of a case in New York, which could not be concluded so that he could be present on October 16, 1923, the trial date.When James R. Howe became attorney for the defendants does not appear; we are unable to find that he at any time was attorney of record.There was shown some loose arrangement between James R. Howe and an assistant district attorney that the case was not to be called on October 16th.While care should be taken by the court to protect litigants against injurious consequences from agreements made without the consent of the court, affecting procedure in a case, litigants and attorneys should know that they may not take refuge behind such agreements.

Assignments 8 and 9 allege error in refusal to direct the district attorney to furnish a bill of particulars and a list of names and addresses of witnesses intended to be used against defendants.As noted above, the indictments were very explicit and many letters are set out in the different counts.The extent to which such motions are allowable is within the discretion of the court.United States v. Pierce (D. C.)245 F. 888;Ball v. United States, 147 F. 32, 36, 78 C. C. A. 126.Neither motion is in the record and it is not pointed out in argument or otherwise that any actual injury ensued to either of the defendants.

Assignment 10, that the court permitted the jury to take a portion of the transcript of the testimony of one of the witnesses to the jury room, does not appear to have been through any act or neglect of the court, nor to have occasioned any injury to defendant.

Counsel has not pointed out, and we are not able to find, any...