United States v. Noble

• Decision Date: 27 December 1923
• Docket Number: 4271.
• Citation: 294 F. 689
• Parties: UNITED STATES v. NOBLE et al.
• Court: U.S. District Court — District of Montana

294 F. 689

UNITED STATES v. NOBLE et al.

No. 4271.

United States District Court, D. Montana.

December 27, 1923

John L Slattery, U.S. Atty., of Helena, Mont.

J. W Speer, of Great Falls, Mont., for defendant Noble.

Henry C. Smith, of Helena, Mont., and La Rue Smith, H. R Eickemeyer, and Wm. F. O'Leary, all of Great Falls Mont., for defendant Peters.

BOURQUIN District Judge.

Defendants Noble and Peters, with one Funk jointly accused and tried, were convicted of making false entries in violation of the national banking laws, and separately move for new trial. The motions are of 'catch-all' variety, and the only grounds thereof requiring particular consideration are (1) misconduct of jurors, in that they entertained prejudice against defendants and concealed and denied it upon voir dire; (2) accident and surprise, in that prior to trial Funk inspired defendants to believe his defense was consistent with theirs, but testified otherwise, to shield himself by implicating Noble; (3) irregularity in the proceedings of the court, in that supplementary instructions were by the court given to the jury, without notice to, and in the absence of, defendants and counsel.

At the hearing of the motion, in Nobel's behalf, an affidavit by husband and wife was presented, that, at a time fixed only as 'prior to' the trial, Juror Woolman had expressed hatred and enmity towards Noble. The prosecution was given time to meet, if it could, this affidavit. Thereupon Peters' counsel requested 'time to file affidavits on behalf of defendant Peters; we did not know until just now that they filed such an affidavit in respect to the juror. ' Obviously in this was no reason to grant time, but ample reason to deny it, as was done.

When the motion was finally heard, defendants, with the prosecution's consent, presented affidavits against Juror Reed, that 'prior to' trial he had expressed prejudice against all bankers. Oral testimony was received from both jurors and the affiants first aforesaid, and upon due consideration of the whole the court finds that the burden upon defendants to prove by the greater weight of the evidence the misconduct alleged against these jurors has not been sustained. On the contrary, the court finds that neither juror entertained the prejudice alleged, and that both were free from prejudice, and were impartial and fair as on voir dire they represented themselves to be.

In so far as Funk testified that all the false entries were made by him upon Noble's directions, the surprise is based upon the ground that prior to trial he led defendants to believe he would testify that only the earlier entries were so made upon Noble's directions, and that the later entries were made upon one Carlson's directions. In this is no prejudicial surprise, for that (1) on the witness stand Funk admitted the fact, but that Noble's counsel knew prior to trial that Funk would testify as he did; (2) subsequent to Funk, Noble testified that he directed none of the entries; (3) defendants had in court and available as witnesses those who knew Funk's former attitude, yet failed to call them; (4) the earlier false entries suffice to sustain the conviction and judgment, and are unaffected by the element of surprise; (5) defendants should have interposed objection when Funk testified, and then claimed mistrial. Having passed it by, and gambled for and lost the verdict, it is too late to allege surprise therein as ground for new trial.

Funk's testimony adverse to Noble would not have required severance in trial (see cases in 16 C.Jur. 786), and so is no reason for new trial.

Antagonistic defenses calculated to prejudice one of several defendants jointly accused will move the discretion of the court to grant that one a separate trial (U.S. v. Marchant, 12 Wheat. 480, 6 L.Ed. 700; U.S. v. Ball, 163 U.S. 672, 16 Sup.Ct. 1192, 41 L.Ed. 300), but is not ground therefor in behalf of the others. It suffices to say without detail that joint trial might have been prejudicial to Funk, but not to these moving defendants; for amongst other reasons, the moving defendants' letters in solicitation of the fictitious loans that were the basis of the earlier false entries might not have been admissible against Funk separately tried, and he, willing as defendants contend, could have been called as a witness for the prosecution in any case. Wolfson v. U.S., 101 F. 430, 41 C.C.A. 422.

The defendants were on bail before and during all proceedings of the trial of near four days, and they and their counsel came and went at will. At no time did they solicit leave to absent themselves or advise the court when...