United States v. Breese

• Decision Date: 10 August 1908
• Citation: 172 F. 761
• Parties: UNITED STATES v. BREESE et al.
• Court: U.S. Court of Appeals — Fourth Circuit

172 F. 761

UNITED STATES v. BREESE et al.

United States District Court, W.D. North Carolina.

August 10, 1908

A. E Holton, U.S. Dist. Atty.

Moore &amp Rollins, Adams & Adams, and Locke Craig, for defendants.

NEWMAN District Judge.

This is a motion to quash the indictment in the above-named case upon the ground that certain members of the grand jury that found the bill of indictment now under consideration had not at their time of service upon the grand jury paid taxes for the preceding year in conformity with the requirements of the statute of North Carolina on that subject, which is as follows:

'The commissioners for the several counties, at their regular meeting on the first Monday of June in each year, shall cause their clerks to lay before them the tax returns for the preceding year for their county, from which they shall proceed to select the names of such persons only as have paid tax for the preceding year and are of good moral character and of sufficient intelligence. ' Code, Sec 1722.

The bill of indictment now before the court was found at Greensboro, N.C., october 6, 1897. Since that time other bills of indictment have been found against the above-named defendants separately, and there has been one trial of Dickerson resulting in a conviction in 1899, the judgment in which case was reversed by the Circuit Court of Appeals in 1901, and several trials of Breese, resulting first in a conviction, which was reversed by the Circuit Court of Appeals (Breese v. United States, 106 F. 680, 45 C.C.A. 535; Id., 108 F. 804, 48 C.C.A. 36). On the second and third trials the jury failed to agree, and the fourth trial in 1904 resulted in a verdict of guilty on certain counts in the indictment and judgment of imprisonment against Breese in the Atlanta penitentiary. This last case was taken to the Circuit Court of Appeals (Breese v. United States, 143 F. 250, 74 C.C.A. 388), and there the case was reversed on the ground that two of the grand jurors who found the bill of indictment in that case had not paid taxes for the year preceding the one in which they served on the grand jury. The motion to quash the indictment in that case was entertained and heard because of an order made November 6, 1897, by Judge Dick, presiding in the District Court at Asheville at that time, when the defendant Breese was arraigned and pleaded not guilty. The order in that case was as follows:

'The United States v. W. E. Breese.

'Filed November 6th, 1897.

'In the above entitled action it is ordered by the court that the defendant, being now arraigned, be and he is now required to enter his plea to the indictment in said cause and he does so plea not guilty thereto, but such plea shall not operate or have the effect to prevent him taking advantage upon motion in arrest of judgment or on a motion for a new trial of all matters and things which could be taken advantage of by motion to quash or demurrer. Upon motion in arrest of judgment or for a new trial, all such matters and things shall be heard and determined as if the same were being heard upon motions to quash or demurrer. This order shall apply to any and all other indictments pending in this court against the defendant.

'Robert P. Dick, U.S. Judge.

'Concurred in. Covington, Assistant United States Attorney.'

It appears from the records of this court that a similar order to the one taken above in the Breese Case was taken in separate cases against each of the other defendants, Dickerson and Penland, so that the three defendants were each arraigned, pleaded not guilty and had the benefit of the order just quoted. The District Attorney insists that this motion to quash comes too late. There is much ground for this insistence. The defendants not only have waited for more than 10 years to make this question, but they have even had two years since the decision of the Circuit Court of Appeals in the Breese Case on this subject. But assuming, without deciding, that this motion to quash is made in apt time, I do not believe that upon its merits it can be sustained. In the motion as filed it was urged that three jurors, James Davis, Jr., A. R. Couch, and N.W. Blackburn, members of the grand jury finding this bill, had failed to pay taxes for the preceding year. The motion was abandoned before the hearing as to Davis, and abandoned upon the hearing as to Couch, and is only urged now as to N.W. Blackburn. It appears from the records that no taxes were listed or assessed against N.W. Blackburn for 1896, which is the year in question here, in the country of Forsyth, where he lived at that time.

It may be gravely questioned from the decision of the Circuit Court of Appeals in the Breese Case, supra, in which this question was passed upon, whether the ruling was not restricted to taxes regularly 'assessed' against a citizen who afterwards becomes a juror. The court referred many times in the opinion to 'taxes assessed,' and there is to my mind much force in the argument of the District Attorney that it was the intention of the court to restrict the ruling to jurors against whom taxes had been listed or assessed. Be this as it may, I am thoroughly satisfied that the juror Blackburn was not liable for any taxes for the year 1896. Under the statute of North Carolina (Revisal 1905,...