Terrell v. United States

Citation6 F.2d 498
Decision Date15 June 1925
Docket NumberNo. 2343.,2343.
PartiesTERRELL v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Lively & Stambaugh and Lon H. Kelly, all of Charleston, W. Va., for plaintiff in error.

Elliott Northcott, U. S. Atty., of Huntington, W. Va., and B. J. Pettigrew, Asst. U. S. Atty., of Charleston, W. Va.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

WOODS, Circuit Judge.

The defendant was convicted on an indictment charging that he "on the ______ day of ______, in the year 1924, and from thence until and on the ______ day of ______, in the year 19__, at Charleston aforesaid, in the county of Kanawha * * * unlawfully and feloniously did carry on the business of a retail liquor dealer, without having paid the special tax therefor as required by law."

Error is assigned in overruling the demurrer to the indictment for indefiniteness in the statement of the date of the offense. The indictment advised the defendant of the charge that in 1924, before November 24 of that year, when the indictment was returned by the grand jury, he had been carrying on the business of a retail liquor dealer without paying the special tax. Moreover the record of the trial shows affirmatively that the defendant knew the time and circumstances, and that he suffered no prejudice for lack of a more definite statement of the date. The demurrer was properly overruled. Revised Statutes, § 1025, (Comp. St. § 1691); Ledbetter v. United States, 170 U. S. 606, 612, 18 S. Ct. 774, 42 L. Ed. 1162.

After the defendant had testified, denying altogether that he had kept or sold intoxicating liquors, the trial judge asked the witness several questions. The questions and answers are thus set out in the record:

"Q. (The Court) Didn't you call me up some three or more weeks ago and ask me if you could see me at my office? A. Yes, sir.

"Q. And didn't you come up to my office? A. Yes, sir.

"Q. And didn't you tell me this same story that you tell here — you told me that that morning? A. Judge McClintic, I have never been in trouble — I have never been in trouble before, and I asked you —

"Q. Just answer the question. A. No, sir; I told you that I could if you would let me —

"Q. Well, just answer the question and then make your explanation. A. I think I told you the same thing as nearly as I can remember.

"Q. Didn't you tell me — when I asked you to tell the whole story, after you had asked me to let you off, I told you that if you would tell me the whole truth about the matter I would consider what I would do? Yes, sir.

"Q. And didn't you tell me then that it would involve too many people to tell the truth, besides yourself, and that you could not afford to tell the whole truth about the matter? A. I think I told you practically that, and I think this morning that I have reiterated practically what I tried to tell you then, sir.

"Q. And didn't I say to you at that time that if you wanted to do what was right you would tell the truth about it, no matter who it involved, and that I felt sure you had been selling liquor, and that you replied that you would not tell the truth, because you felt that it would involve so many people, and that you would rather take your punishment than tell the truth.

"Mr. Kelly: We want an exception to all that the court is saying.

"The Court: I have no objections to your making any exceptions you want.

"Q. (The Court) Didn't you tell me that in so many words? A. ...

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14 cases
  • U.S. v. Paiva
    • United States
    • U.S. Court of Appeals — First Circuit
    • 4 April 1989
    ...§ 2557 (West 1971). A district court judge also has the power to question witnesses. Fed.R.Evid. 614. See also Terrell v. United States, 6 F.2d 498, 499 (4th Cir.1925). In commenting on the testimony or questioning witnesses, however, the judge may not assume the role of a witness. Quercia,......
  • In re Elam
    • United States
    • Missouri Supreme Court
    • 12 April 1948
    ...948 (2, 3); Sandrowski v. Sandrowski, 230 Mo.App. 1056, 93 S.W.2d 81. [2]Gray v. Crockett, 35 Kan. 66, 71, 10 P. 452, 455; Terrell v. U.S. (C.C.A.), 6 F.2d 498, 499(2); v. Sandquist, 146 Minn. 322, 323, 178 N.W. 883; State v. De Maio, 69 N.J.L. 590, 592, 55 A. 644; People v. Dohring, 59 N.Y......
  • U.S. v. Concemi
    • United States
    • U.S. Court of Appeals — First Circuit
    • 11 September 1991
    ...witness." Id. (citing Quercia, 289 U.S. at 470, 53 S.Ct. at 699; Tyler v. Swenson, 427 F.2d 412, 416 (8th Cir.1970); Terrell v. United States, 6 F.2d 498, 499 (4th Cir.1925)). "He may analyze and dissect the evidence, but he may not either distort it or add to it." Maguire, 918 F.2d at 268 ......
  • Bradley v. State ex rel. White
    • United States
    • Texas Supreme Court
    • 8 April 1999
    ...See, e.g.,Brown v. Lynaugh, 843 F.2d 849, 851 (5 th Cir.1988); Tyler v. Swenson, 427 F.2d 412, 415 (8 th Cir.1970); Terrell v. United States, 6 F.2d 498, 499 (4 th Cir.1925); Haynes v. State of Missouri, 937 S.W.2d 199, 202 (Mo.1996); Wilson v. Oklahoma Horse Racing Comm'n, 910 P.2d 1020, 1......
  • Request a trial to view additional results
6 books & journal articles
  • Child, spouse & Misc.
    • United States
    • James Publishing Practical Law Books Trial Evidence Foundations Witnesses
    • 5 May 2019
    ...long-standing practice that a judge may neither testify nor comment at a trial in a “testimony-like way.” See Terrell v. United States , 6 F.2d 498 (4th Cir. 1925) (trial judge improperly stated that he was sure defendant had violated law and was lying; conviction reversed). Whenever a judg......
  • Witnesses
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2017 Contents
    • 31 July 2017
    ...long-standing practice that a judge may neither testify nor comment at a trial in a “testimony-like way.” See Terrell v. United States , 6 F.2d 498 (4th Cir. 1925) (trial judge improperly stated that he was sure defendant had violated law and was lying; conviction reversed). Whenever a judg......
  • Witnesses
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2018 Contents
    • 31 July 2018
    ...long-standing practice that a judge may neither testify nor comment at a trial in a “testimony-like way.” See Terrell v. United States , 6 F.2d 498 (4th Cir. 1925) (trial judge improperly stated that he was sure defendant had violated law and was lying; conviction reversed). Whenever a judg......
  • Witnesses
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2014 Contents
    • 31 July 2014
    ...long-standing practice that a judge may neither testify nor comment at a trial in a “testimony-like way.” See Terrell v. United States , 6 F.2d 498 (4th Cir. 1925) (trial judge improperly stated that he was sure defendant had violated law and was lying; conviction reversed). Whenever a judg......
  • Request a trial to view additional results

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