Worthington v. United States

• Decision Date: 16 September 1924
• Docket Number: No. 3373.,3373.
• Citation: 1 F.2d 154
• Parties: WORTHINGTON v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

1 F.2d 154 (1924)

WORTHINGTON v. UNITED STATES.^*

No. 3373.

Circuit Court of Appeals, Seventh Circuit.

August 14, 1924.

Rehearing Denied September 16, 1924.

Charles P. R. Macaulay and Samuel Block, both of Chicago, Ill., for plaintiff in error.

Harry F. Hamlin, of Chicago, Ill., for the United States.

Before EVANS and PAGE, Circuit Judges, and FITZHENRY, District Judge.

FITZHENRY, District Judge.

The indictment in this cause was returned December 10, 1914. It contains seven counts, charging plaintiff in error and two others, McKinnon and Coy, with conspiracy to violate section 215 of the Penal Code (Comp. St. § 10385), and, in the second to seventh counts, inclusive, with having used the mails in furtherance of a scheme to defraud, in violation of the same section. All of the counts, exclusive of the first, charge the substantive crime for overt acts set out in the conspiracy count.

On February 8, 1923, a nolle prosequi was entered as to defendant McKinnon. On December 2, 1922, defendants Worthington and Coy demurred to the indictment. The demurrer was overruled on the following day. On February 8, 1923, the same two defendants filed a plea, alleging that the United States had for more than a reasonable time, to wit, eight years, failed, neglected and omitted to bring the defendants to trial, and failed in any wise during said period to prosecute the cause, and claiming that their right to a speedy trial under the Sixth Amendment to the Constitution had been violated, and prayed judgment if the action be further maintained. Defendants also moved the court to discharge them, and plaintiff demurred to the plea. The demurrer was sustained, and the motion denied. At the conclusion of the evidence on behalf of plaintiff, the court, on motion, instructed the jury to find defendant Coy not guilty, and denied a similar motion on behalf of defendant. At the conclusion of the evidence, defendant renewed his motion for a peremptory instruction, which was denied, and the cause submitted to the jury. The jury returned a verdict finding defendant guilty on counts 1 and 2 and not guilty upon 3 and 4. The record is silent as to the disposition of counts 5, 6, and 7. A motion for a new trial was entered and denied; also, a motion in arrest of judgment. Whereupon defendant was fined and sentenced.

The principal assignment of error is the ruling of the court in refusing to dismiss the defendants upon their plea, and sustaining plaintiff's demurrer thereto. The record fails to show a single effort made by defendant, or any other defendant, to avail himself of a speedy trial. No facts were pleaded bringing the case within the rule requiring a speedy trial; i. e., that the defendant was incarcerated, or, being enlarged, had appeared in open court demanding trial, or otherwise. Defendant's sole reliance was upon the bare fact that the case had not been prosecuted. If the defendant desired a speedy trial, it was his duty to ask for it, and we must assume that it would have been granted, had he made any effort to procure it. His long and uninterrupted acquiescence in the delay bars his right to complain. Phillips v. United States, 201 Fed. 262, 120 C. C. A. 149.

It is insisted that the verdict is inconsistent, and, in support thereof, it is contended that as one of the overt acts charged in furtherance of the conspiracy to defraud was the mailing of a letter to one Trumbo, on January 4, 1912, which is also charged as an offense in the second count, that if he was not guilty of using the mail in furtherance of a fraudulent scheme by mailing a letter to the same Trumbo on February 26, 1912, as charged in the third count, or by the mailing of the...