United States v. Cobban

• Citation: 127 F. 713
• Decision Date: 21 January 1904
• Docket Number: 527.
• Parties: UNITED States v. CORBAN.
• Court: U.S. District Court — District of Montana

127 F. 713

UNITED States v. CORBAN.

No. 527.

United States Circuit Court, D. Montana.

January 21, 1904

M. C Burch and Fred A. Maynard, for the United States.

T. J Walsh, for defendant.

BEATTY District Judge.

The many questions mooted in this matter have been considered but, in the interest of reasonable brevity, all cannot be fully discussed here.

Indictments based upon alleged violations of the timber laws are returned as follows: Against defendant Cobban, twelve for subornation of perjury; against John B. Catlin, five for subornation of perjury and one for perjury; and against each of thirty-eight other parties, one for perjury. To each indictment are interposed ten separate pleas in abatement, being the same in each case, all of which have been submitted together.

It is stipulated that the order and judgment made in this case upon this hearing shall be made as to the pleas in all the other cases above referred to. These several pleas, which, for convenience, will be numbered, assign: (1) That Jury Commissioner Muth had no authority to act as such, and had not taken the official oath. (2) That the clerk and said Muth selected the names of jurors for the box promiscuously from the city directory. (3) That grand juror Hildebrand was not on the assessment roll. (4) That Fred A. Maynard, claiming to be an assistant United States attorney, appeared before the grand jury when he had not been commissioned as such; that no commission of his had been filed in the office of either the clerk or of the Attorney General, nor had he taken the official oath. (5) That he was not then an attorney or an official of the court, nor authorized by its order to so act. (6) It is included in the fifth. (7) That the original statement or affidavit, which it is alleged in the indictment was subscribed by Arnold Mickels, was never offered in evidence before the grand jury, and was never seen or considered by them. (8) That there was no testimony before the jury that said Mickels took an oath before any person that he would testify truly concerning any of the matters set out in the statement or affidavit recited in the indictment. (9) That before any witnesses were sworn said Maynard made an extended address to the jury, stating what the witnesses would testify to; that the defendant had entered into arrangement with various parties to obtain by fraud and perjury large tracts of timber lands; that he advised the jury as to their duty; that he read to them a report made by a department agent-- Zevely-- as to these alleged frauds; that he read various affidavits taken by said Zevely during his investigation, and urged them to return indictments; that the testimony demanded that they do so, and that it was their duty; that while the witnesses Howell and Hershey, both attorneys at law, were before the jury, he stated to each the substance of the testimony, and then propounded to them the question whether such being the testimony, it did not show a violation of the law, and that indictments should be returned (it seems that, lawyer-like, they desired to argue, instead of answer the question, but, on being urged by Maynard, answered in the affirmative); that Howell then stated to the jury that some of the recited facts would be innocent, while others would be criminal, and endeavored to point out to the jury which constituted criminality and which not, but said Maynard refused to permit him to do so. And 10 is a mere repetition of the latter part of the last. There is the eleventh in this case, to the effect that Maynard entered into a conspiracy with the juror Hildebrand, by which, upon giving signals, the said juror should ask questions when he (Maynard), in answer, would improve the opportunity of making addresses to the jury, and urge it to find indictments. To each pleas is added the allegation that defendant had not been held under arrest on this charge, and did not know that it would be investigated by the grand jury. The only office of this is to meet any objection that might be made that any of the questions raised by any of these pleas should have been met by a challenge to the array or otherwise. To such end is is sufficient.

The government's counsel say that, as a plea in abatement is in its nature dilatory, 'it must be certain to every intent, and the greatest accuracy and precision are required in framing it. ' Conceding the rule, the question remains whether these pleas do not come within it. They seem so framed as to be without any embarrassing ambiguity. As no particular uncertainties are designated, and as none are apparent, counsel's suggestion may be considered simply as the statement of a correct legal proposition.

The same counsel also assert that: 'Another rule to which there is no exception is this: 'No indictment will be set aside on the ground of informalities and irregularities, unless it is averred in the pleas and proven that the defendant has been prejudiced in his substantial rights by reason of such informalities or irregularities;'' in support of which are cited section 1025, Rev.St. (U.S.Comp.St. 1901, p. 720), and 13 other citations. The distinct claim is that prejudice must be averred in the pleas. If this were the law, it would end all further consideration of these pleas, for in none of them is there any such averment. These citations have been examined. They do not sustain counsel's proposition. The averment of prejudice is but a legal conclusion. Its existence must be established by the allegations and proof of the facts which show it. As, in Agnew v. United States, 165 U.S. 44, 17 Sup.Ct. 239, 41 L.Ed. 624, the plea averred prejudice, the question of the necessity of averring it could not arise, nor was it referred to; but it is said that 'the plea is fatally defective, in that, although it is stated that the drawing 'tended to his injury and prejudice,' no grounds whatever are assigned for such a conclusion. ' From this it cannot be inferred that the court intended to hold that the averment of prejudice must be made, but it does distinctly say that the facts showing it must be averred. The only reference to this question in U.S. v. Terry (D.C.) 39 F. 355, is this: 'The mere presence of the District Attorney, when the voting takes place, is at most an irregularity, which, when there is no proof or averment of injury or prejudice of the defendant, is a matter of form and not of substance. ' Of the citations, these are all which in any way refer to this point, but they all refer to some of the questions discussed in this case. It must, then, follow, that these pleas cannot be overruled because they omit the averment of prejudice.

The other part of counsel's proposition-- that irregularities will not be considered unless proven to be prejudicial-- is based upon said section 1025, and is supported by many authorities. That section provides that 'no indictment * * * shall be deemed insufficient nor shall the trial, judgment or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant. ' In the interest of public justice this statute became imperative. Purely technical defenses, devoid of all merit, too often tipped the scales in favor of the lawless. Fortunately, this statute, as an armor to justice, directs that the existence of irregularity, if error of form, shall not be presumed a wrong to the accused; but it must be shown to be so. Among the authorities so holding are U.S. v. Ewan (C.C.) 40 F. 451, and Agnew v. U.S., 165 U.S. 44, 17 Sup.Ct. 238, 41 L.Ed. 624. The latter says: 'Another general rule is that for such irregularities as do not prejudice the defendant he has no cause of complaint, and can take no exceptions. ' Of the irregularities alleged by these pleas, and which are subject to this rule, may be mentioned those as to impaneling the jury, the disqualification of jurors, the appearance before the jury and taking part in its proceedings of improper persons, and irregularities of procedure and conduct before the jury. If there were doubts whether this section includes irregularity in the entire procedure or only those of form in the indictment, the ruling of Mr. Justice Brewer, concurred in by Judge Thayer, in U.S. v. Malloy (C.C.) 31 F. 23, disposes of them in favor of the first proposition.

Considering then, the pleas in their order, 1, 2, 3, and 11 are overruled. The first two having been waived by defendant, and the last two having so little evidence in their support that their serious consideration is not justified. Pleas 4, 5, and 6 are in denial of Maynard's authority to appear before the grand jury as assistant district attorney. From the testimony it appears that on June 7, 1901, the Attorney General of the United States appointed him 'Special Assistant to the Attorney of the District of Montana'; that on the same day he took his oath of office, and filed it in the office of the Attorney General; that before commencing his duties before the jury he exhibited his letter of appointment to the United States District Attorney of Montana, who then introduced him to the grand jury; that the indictments were returned on June 26th; that on the next day one was dismissed upon Maynard's motion, by order of the court; and that he was regularly admitted as an attorney of the court on January 14, 1902, when his appointment as such special assistant was filed. There is no question that the District Attorney of Montana recognized his right to appear officially before the jury, and was there with him. It is said that he acted without the knowledge or authority of the court. Grand juries perform their duties under the eye and general supervision of the court. It is a reflection upon the vigilance of the...