Turner v. United States

• Decision Date: 15 January 1895
• Docket Number: 253.
• Parties: TURNER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

66 F. 280

TURNER et al. v. UNITED STATES.

No. 253.

United States Court of Appeals, Fifth Circuit.

January 15, 1895

On the 16th of February, 1894, the grand jury impaneled in the district court for the Southern district of Alabama found two indictments against the plaintiffs in error, each containing two counts, for cutting and procuring to be cut, with intent to export, dispose of, use, and employ the same in some manner other than for the use of the navy of the United States, certain timber upon lands then and there belonging to the United States, to wit: In the first indictment, No 1,141, the E. 1/2 of the E. 1/2 of section 13, and all that part of the W. 1/2 of the E. 1/2 of section 13 lying east of the state line between the state of Alabama and the state of Mississippi, all in township 3 N., range 5 W., St. Stephen's meridian; and, in the second indictment, No. 1,142, the N. 1/2 and S.E. 1/4 and the N. 1/2 of the S.W. 1/4, section 19, township 3, range 4, all in the county of Washington, state of Alabama,-- and duly charging other necessary ingredients to make offenses under section 2461 of the Revised Statutes of the United States. After the finding of said indictments, the court ordered as follows 'It is ordered by the court that the above-stated cases numbers 1,141 and 1,142, United States v. Noel E. Turner and Martin Lankford, be and the same are hereby consolidated, and to be considered and tried together;' and thereupon the defendants pleaded, each for himself, not guilty, a jury was duly elected, tried, and sworn, and the trial of the consolidated cases was proceeded with, resulting in a verdict of not guilty in case 1,141, and of guilty as charged in the indictment, and assessing the damages at $248.80, in case 1,142. Thereupon the defendants moved the court to grant a new trial in said consolidated causes, on the ground 'that the verdict as rendered by the jury was contrary to law, the evidence, and the charge of the court, and because one or more of the jurors sworn to try the cause were not impartial, in this, to wit, they had severed upon a former jury at this same term of the court, convicting one of the defendants upon a similar charge from testimony elicited from one of the same witnesses, and because the jury arrived at the verdict by methods other than the consideration of the evidence. ' In the record following this motion for a new trial are affidavits purporting to be the several affidavits of each of three jurors sworn in the case, in each of which is recited the manner in which the jury ascertained and arrived at the number of trees cut and removed by the plaintiffs in error. At a later day of the term, April 7, 1894, the motion for a new trial was overruled and denied as of date April 5, 1894. On April 3, 1894, the plaintiffs in error also filed a motion in arrest of judgment as follows: 'Now come the defendants in the above-stated cause, after verdict and upon sentence, and move the court to arrest the judgment in said cause on the following grounds: First. Because the grand jury that returned the indictment was not summoned according to law, in this: that the record fails to show that the court ordered the venire to issue therefor. Second. Because the record fails to show that the foreman of the grand jury was appointed according to law. Third. Because the record fails to show the talesmen summoned to serve on the grand jury were ordered to be summoned by the court and from the body of the district, as required by law. Fourth. Because the record fails to show that the grand jury which returned the indictment in this consolidated cause was drawn from the jury box, containing at the time of said drawing the names of not less than 300 persons, as required by law, and the record fails to show that the names composing said grand jury had been placed in the box by the commissioners, as the law required. Fifth. Because the record shows that one or more of the petit jurors who served in the trial of this cause were drawn from the jury box after the number of names in said jury box were reduced below 300. Sixth. Because the defendants in this cause were indicted and tried jointly, and the verdict of the jury fails to assess a separate penalty against each of them. Seventh. Because the record shows that this cause was consolidated by the court with another cause, and became one case, and the jury returned a verdict of not guilty in the other case, and that operated an acquittal in this case. ' In the transcript of record following this motion is a list of names of persons, with the post office or residence of each, the same purporting to be the jury-box list for the November term, 1893, but which is not otherwise verified, nor shown to be a part of the record. On April 5, 1894, the court overruled and denied the motion in arrest of judgment, and thereupon proceeded to sentence the plaintiffs in error, respectively, as follows: Noel E. Turner to pay a fine of $746.40 and the costs of the prosecution, and be imprisoned for the period of six months in the Mobile county jail, and stand committed until the payment of said fine and costs; said imprisonment to commence on the expiration of a former sentence pronounced on this day on the said defendant in another case. Martin Lankford to pay a fine of $746.40 and the cost of the prosecution, and be imprisoned for the period of one month in Mobile county jail, and stand committed until the payment of said fine and costs. Thereupon the plaintiffs in error brought the case to this court for review upon some 16 assignments of error, mainly relating to errors on the part of the court in the admission or rejection of evidence, but all of which are specially noticed, so far as the same is necessary, in the opinion of the court.

M. D. Wickersham, W. H. McIntosh, and J. C. Rich, for plaintiffs in error.

J. N. Miller, U.S. Atty.

Before PARDEE and McCORMICK, Circuit Judges, and BRUCE, District Judge.

PARDEE Circuit Judge (after stating the facts).

The first assignment of error is that the court erred in permitting a map made by one Capt. Dan Williams, a surveyor, to be received in evidence, because it was not shown that the said map was made by authority of law. The bill of exceptions recites that on the trial the United States called as a witness one Capt. Dan Williams, who testified that he had been employed by the United States to make a survey of the land in said section 19, and also to run the lines upon said section 13, township 3 N., range 5 W., in said Washington county; that he had made a map of said lands and surrounding lands, but that he was unable to state that any portion of his map was correct, except those portions of said sections 19 and 13 which are represented upon said map. The United States attorney then offered in evidence the map so made by the said Williams, to which the defendants objected, on the ground that the said map was not shown to be made by any authority of law. We understand from this that the court admitted the map of the lands in question made by Capt. Dan Williams in connection with and as a part of his evidence. It certainly was not a case of offering an unofficial map or plat as independent evidence.

The second, third, and fourth assignments of error relate to the evidence given by one Forbes, a witness for the United States, who testified that he was a special agent of the general land office, and that he made a personal examination of the alleged depredations upon sections 19 and 13 in August of 1893. Upon being asked what number of trees, in his best judgment, as estimated by him on examination, had been cut or removed from the public land in said section 13 and 19 respectively, said Forbes replied, 'About 200 on section 13, and at least 2,000 on said section 19,' to which question and answer defendants objected. No reason for the objection was given at the time, and no reason is given in the assignment of error. The United States then, by its attorney, asked said witness Forbes, 'Did you know the market value at that place of timber or trees like those cut on said section 19?' to...