United States v. Bok

• Decision Date: 06 October 1923
• Citation: 293 F. 443
• Parties: UNITED STATES v. BOK.
• Court: U.S. District Court — District of Minnesota

293 F. 443

UNITED STATES v. BOK.

United States District Court, D. Minnesota, Fifth Division.

October 6, 1923

W. F Dacey, of Duluth, Minn., for petitioner.

Lafayette French, Jr., U.S. Dist. Atty., of St. Paul, Minn.

McGEE District Judge.

The information filed on May 1, 1923, by the district attorney charges the defendant with having made a sale of intoxicating liquor in the soft drink parlor conducted by him at 9801 Crestline Court street, in Duluth, Minn., on the 10th day of November, 1922, and with having had intoxicating liquor in his possession at the same place on the 21st day of the same month, both in violation of the provisions of the National Prohibition Act (41 Stat. 305).

The defendant before the trial interposed a motion to quash the first or possession count of the information, which motion was granted.

The case was tried on the 23d day of July, 1923, and resulted in a verdict of guilty on the second or sale count. The defendant was sentenced to serve 5 months and 25 days in the county jail of Itasca County.

A motion for a new trial was made and denied on the 24th day of august, 1923.

The sufficiency or validity of the second count in the information was not challenged by a motion to quash, by demurrer, or motion in arrest of judgment.

The evidence taken on the trial and the charge of the court have not been preserved in the record. Aside from the ruling of the court sustaining a motion to quash the first or possession count in the information, which was a ruling in the defendant's favor, and the order denying the motion for a new trial, which is a discretionary order, and cannot be assigned as error, there is nothing in the bill of exceptions from its opening to its concluding sentence showing that the defendant ever made an objection, that the court ever made a ruling, or that the defendant ever took an exception.

The case is now presented on a petition for the allowance of a writ of error and supersedeas. An assignment of errors has been presented with the petition for the allowance of the writ, and contains 14 assignments, of which the first second, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth are identical with the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, fifteenth, and sixteenth assignments in the case of United States v. Norman R. McDonald, 293 F. 433, tried on the 18th and 19th days of July, 1923, at Duluth, Minn.

The assignments of error common to both cases were examined very carefully in the McDonald Case, and disposed of in a memorandum attached to the order in that case denying the writ; and what is said in that memorandum is equally applicable here, and for that reason the memorandum is hereto attached and made a part of the order herein.

The third, fourth, and fifth assignments of error which are based upon a misapprehension of the record herein are designed to raise the same question, namely, that the information alleges that the sale took place at a stated street number in the city of Duluth, Minn., and the evidence on the part of the government was to the effect that the sale took place at another and distinctly different place in said city; that the court erred in permitting the government to introduce evidence tending to prove the sale at a different place from that set forth in the information; that there was a fatal variance between the allegations of the information and the proof of the government as to the precise place where the sale was made.

Assuming that the precise location described in the information was material and essential to be proved, as alleged, which is not true as a matter of law, still there is no warrant in the record for the statements contained in the third, fourth, and fifth assignments of error that the premises on which the evidence showed the sale took place were in another and totally different place in said city. The only reference to the matter in the bill of exceptions is in the fourth paragraph thereof, and is as follows:

'That on July 23, 1923, said case was called for trial and tried before Hon. John F. McGee and a jury, and on behalf of the government one Matt Viitala testified that on the 10th day of November, 1922, between 5 and 6 o'clock, p.m., he purchased intoxicating liquor from the defendant at 9801 Crestline Court, in the city of Duluth, Minn. It was further shown that the defendant on November 10, 1922, lived at No. 119 East Crestline Court, in the same building as No. 9801 Crestline Court street, although the two numbers are on different streets, the building being on a corner.'

The certificate to the bill of exceptions is as follows:

'The foregoing bill of exceptions is hereby settled and allowed as and for the bill of exceptions in the above-entitled case.'

It is not pretended that the evidence taken on the trial is contained in the bill of exceptions, which covers practically only two pages of typewritten matter, and does not, in fact, contain 1 per cent. of the testimony taken on the trial.

If any one proposition is better settled than another in the Circuit Court of Appeals of this circuit, it is that error on the part of the court below is not presumed, and that the burden rests upon one asserting error to affirmatively establish that fact from the record before the court.

The three assignments of error in question have no foundation whatever to rest upon, because of the fact that the evidence with which they deal has not been preserved, and in support of the judgment it will be presumed that there was evidence showing that 9801 Crestline Court and 9801 Crestline Court street is one and the same place.

To succeed in the appellate court on these assignments of error, it would be incumbent upon the defendant as plaintiff in error to demonstrate from the record that the description in the information and the description given by the witness Viitala were of different localities, and that the difference was such that to receive the testimony was prejudicial to the defendant, and that to its introduction proper objection was made and exception taken, which does not appear.

In Malcolm v. U.S. (C.C.A. 4) 256 F. 363, 167 C.C.A. 533, it is said:

'The indictment charges that the transportation was from Ashland, Ky., to Charleston, W. Va., whereas the proof shows that it was from Catlettsburg, Ky., which is a few miles from Ashland, and this variance is alleged to be fatal. We are quite unconvinced, notwithstanding the able argument of defendant's counsel, that this contention should be sustained. * * * In our judgment it would have been sufficient merely to charge, in the language of the statute, the transportation of the whisky in question into the state of West Virginia, without naming the particular place, or even the state, from which it was transported. Omission of the point of origin might have entitled defendant to a bill of particulars, but it would not have served to render the indictment demurrable. * * * Moreover, in the case at bar there could be no claim that defendant was surprised, as it is evident from the record that he was never in doubt as to what transactions were referred to in the indictment. The defense of variance is purely technical and cannot be allowed to prevail.'

In U.S. v. Holtz (D.C.) 288 F. 81, 83, the court said:

'It is quite immaterial

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