Terrell v. United States

• Decision Date: 15 June 1925
• Docket Number: No. 2343.,2343.
• Citation: Terrell v. United States, 6 F.2d 498 (4th Cir. 1925)
• Parties: TERRELL v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

6 F.2d 498 (1925)

TERRELL v. UNITED STATES.

No. 2343.

Circuit Court of Appeals, Fourth Circuit.

June 15, 1925.

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. I could not say that I told...