Wilson v. United States

• Decision Date: 22 April 1935
• Docket Number: No. 10182.,10182.
• Citation: 77 F.2d 236
• Parties: WILSON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

77 F.2d 236 (1935)

WILSON et al. v. UNITED STATES.

No. 10182.

Circuit Court of Appeals, Eighth Circuit.

April 22, 1935.

Joseph R. Brown, of Ft. Smith, Ark. (Bush & Bush, of Prescott, Ark., and John Duty, of Rogers, Ark., on the brief), for appellants.

Clinton R. Barry, U. S. Atty., and John E. Harris, Asst. U. S. Atty., both of Ft. Smith, Ark. (Duke Frederick, Asst. U. S. Atty., of Ft. Smith, Ark., on the brief), for the United States.

Before STONE, SANBORN, and FARIS, Circuit Judges.

SANBORN, Circuit Judge.

The facts out of which this controversy arises are not in substantial dispute, although the parties differ as to the inferences which may properly be drawn from them.

The appellants, Wilson and Gurley (who will be referred to as the defendants), had been for some years prior to June 30, 1933, in the employ of the government at Fort Smith, Ark., the former as a prohibition agent, and the latter as Assistant Prohibition Administrator. They were furloughed on June 30, 1933. It had been the duty of Wilson to search out violations of the National Prohibition Act and to apprehend those committing them. He had apparently been active in that regard prior to his separation from the service, and had participated in a large number of raids upon illicit manufacturers of liquor in the Western District of Arkansas. He had arrested operators of illicit stills and had made charges against them before the United States Commissioner, who had bound them over to the grand jury. After Wilson and Gurley were furloughed, and before the grand jury had been convened in the fall of 1933, they sought out some of these violators against whom Wilson had evidence and had made charges, but who were not yet indicted, and offered to have the proceedings against them dismissed or disposed of for a consideration to be forthwith paid in cash. The defendants' prices were evidently regarded as reasonable, the standard fee apparently being $10 for guaranteeing the satisfactory disposal of each offense charged, and they met with considerable success in their enterprise. The government, however, believing that this money was being received by the defendants for the purpose of securing the suppression of Wilson's evidence against those who were making the payments, procured an indictment against the defendants, charging Wilson with having on six separate occasions accepted a bribe upon an agreement that his testimony would be influenced thereby, in violation of title 18, § 240, U. S. C. (18 USCA § 240); and charging Gurley with being an aider and abetter of Wilson. Upon the trial, the first count of the indictment was dismissed. The defendants were found guilty upon the last five counts, and were each sentenced to two years in the penitentiary. They have appealed from the judgment and sentence.

Many of the assignments and specifications of error relate to rulings upon the evidence. There has been, with respect to such assignments and specifications, no attempt to comply with rules 11 and 24 of this court, and we are therefore not called upon to consider the challenged rulings. Ford Motor Co. v. Brady (C. C. A. 8), 73 F.(2d) 248.

The assignments and specifications relating to errors in the charge of the court will not be considered because they are not based upon any exceptions taken to the court's charge. Busch v. United States (C. C. A. 8) 52 F.(2d) 79, 87.

The defendants' requests for instructions are not included in the bill of exceptions, and therefore the alleged errors of the court with respect to the refusal of requested instructions cannot be considered.

The defendants have challenged the overruling of their demurrer to the indictment and the denial of their motion for a directed verdict on the ground of the insufficiency of the evidence.

It was claimed by the defendants upon the trial that those who paid them money did so, not upon any agreement or understanding that the testimony of Wilson should be influenced thereby, but for the purpose of retaining the services of Gurley as an attorney, and that Gurley had received all of the money paid. It appeared that Gurley had been admitted to practice in the state courts of Arkansas, although he had never either studied or practiced law. It was conceded that he had not been admitted to practice in the federal court. There was nothing in the evidence to indicate that any of those who had paid money to the defendants, or either of them, had any idea of employing Gurley as counsel, or that the money was paid upon any representation by the defendants that it was in consideration for his services as a lawyer. The money was paid to avoid indictment and prosecution. So far as the evidence shows, the defendants had nothing to sell except the suppression of Wilson's evidence, and, although the purchasers testified that no agreement to the effect that Wilson's testimony against them was to be influenced by their payments, was actually expressed, we think that the jury were justified in inferring that bribes were accepted for that reason and upon that understanding, since the testimony is inconsistent with any other reasonable hypothesis. The court below was not required to direct a verdict for the defendants unless the facts, as pleaded in the indictment and as found by the jury, did not constitute a crime.

Count 2 of the indictment is fairly typical of all of the counts, and charges as follows:

"That heretofore, on or about June 23, 1933, one John Clark was arrested and brought before J. Warren Stevens, as United States Commissioner in the Texarkana Division of the Western District of Arkansas, upon a charge of unlawfully manufacturing intoxicating liquor in violation of the laws of the United States. That at said hearing the said John Clark was duly bound over by the said J. Warren Stevens, as United States Commissioner, aforesaid, upon said charge to await the action of a Grand Jury of the District Court of the United States for the Western District of Arkansas, and that ever since said time the said criminal action against the said John Clark, as aforesaid, has been and is now pending in said United States District Court for the Western District of Arkansas, Texarkana Division.

"That one Owen R. Wilson was on said June 23, 1933, a prohibition investigator in the employ of the United States and that he in company with others officers arrested the said John Clark on said charge, as aforesaid, and that at the time of such arrest the said Owen R. Wilson witnessed the fact that the said John Clark was engaged in the unlawful operation of a still in manufacturing whiskey in violation of the laws of the United States, and the said Owen R. Wilson has knowledge of facts tending to prove that the said John Clark is guilty of the offense or offenses for which he stood charged in said criminal action, as aforesaid, and that the said Owen R. Wilson would have been and is a material and important witness for the United States and against the said John Clark before any grand jury of the United States inquiring into the offenses charged against the said John Clark, as aforesaid, and at the trial of the said John Clark in the United States District Court for the Western District of Arkansas upon any indictment which might be found, presented and filed against the said John Clark for the offenses for which he stands charged, as aforesaid. That on or about November 13, 1933, in the city of Texarkana, in the Texarkana Division of the Western District of Arkansas, the said Owen R. Wilson asked for and accepted from the said John Clark the sum of, to-wit: Five ($5.00) Dollars, upon an agreement and understanding that his testimony in said criminal action against the said John Clark, as aforesaid, should be influenced thereby.

"* * * That one S. M. Gurley in said District well knowing the premises and on or about said November 9, 1933, and in Nevada County, State of Arkansas, and being present at the time and place that the said John Clark paid to the said Owen R. Wilson the said bribe in the sum of Five Dollars, as aforesaid, did aid and abet the said Owen R. Wilson in asking for and accepting said bribe in the manner and form aforesaid."

Title 18, § 240, U. S. C. (18 USCA § 240), reads as follows: "Whoever, being, or about to be, a witness upon a trial, hearing, or other proceeding, before any court or any officer authorized by the laws of the United States to hear evidence or take testimony, shall receive, or agree or offer to receive, a bribe, upon any agreement or understanding that his testimony shall be influenced thereby, or that he will absent himself from the trial, hearing, or other proceeding, or because of such testimony, or such absence, shall be fined not more than $2,000, or imprisoned not more than two years, or both."

The contention of the defendants is that the statute in question applies only to one who is or is about to be a witness before a court or before an officer authorized to hear evidence, and that it does not apply to one who is or is about to be a witness before a grand jury; that a grand jury is neither a court nor an officer. It is argued that, since in Todd v. United States, 158 U. S. 278, 15 S. Ct. 889, 39 L. Ed. 982, it was held that a witness before a United States Commissioner was not a witness in a United States court, and, in United States v. Clark, Fed. Cas. No. 14,804, 1 Gall. 497, it was held that a perjury committed by a witness on a preliminary hearing before a United States District Judge was not a perjury done in a court of the United States, it should be held that a witness before a grand jury is not a witness before a court. It is further argued that, because those who had given bribes to Wilson had not been indicted, no cases were pending before the court; so that Wilson was not and was not about to be a witness in court at the time he received the bribes.

There are no common-law crimes against the United States. United States v. Eaton, 144 U. S. 677...