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Assignments Nos. 6 and 7 alone present questions for consideration. The following are the only exceptions to the charge of the court as given :

“Mr. Coakley: The defendant excepts to that part of the charge following the charge on reasonable doubt, for the reason that the statement as given in the charge throws the burden upon the defendant, instead of placing it upon the government, to prove the case. And further excepts to that part of the charge which predicates the case upon the whisky having been caused to be carried into the Eastern district of Oklahoma. "The Court: Exceptions noted."

[5,6] By referring to the charge we can spell out what is meant by the first clause of the above exceptions. The last clause is unintelligible. The exception contained in the first clause is not properly assigned as error, but in a case involving personal liberty we will consider it. The portion of the charge to which exception was taken reads as follows:

“Now, with regard to the evidence of one of the witnesses for the government, the witness Beck: You have heard this witness' testimony. Of course, if you believe, from his testimony and from all the evidence in this case, that it was he who introduced this liquor, and that the defendant Bandy had no interest in or connection with it at all then, of course, you must find the defendant Bandy not guilty.”

It was the theory of the defendant that the witness Beck introduced the liquor. It is therefore claimed that the above excerpt from the charge placed the burden of proof upon the defendant. Taking the whole charge of the court together, however, there is no merit in this contention. The jury was properly instructed upon the question of reasonable doubt.

[7,8] Counsel for defendant requested the court to charge as follows:

(5) You are instructed that under the testimony of the witness C. T. Beck he is an accomplice in the crime of introducing liquor charged herein, if such crime was committed, and you cannot convict the defendant upon the testimony of said Beck alone, unless you find his testimony corroborated by other evidence in the case, tending to connect the defendant with the commission of the crime.

"(6) If you find from the evidence that the witnes C. T. Beck was interested in the liquor for which introduction is charged in this case, or was interested in its introduction, then the said C. T. Beck would be an accomplice, and you cannot convict the defendant, 0. E. Bandy, upon the testimony of said C. T. Beck, unless you find the testimony of said Beck corroborated by other testimony in the case tending to connect the defendant with the commission of the crime,

"(7) If you find from the evidence that the witness C. T. Beck was aiding and abetting the defendant or any other person in introducing the liquor in question into the Eastern district of Oklahoma, then the said C. T. Beck would be an accomplice, and you cannot convict the defendant upon the testimony of said C. T. Beck, unless you find such testimony corroborated by other testimony in the case tending to connect the defendant with the commission of the crime.”

The record shows that these requests were not given as requested, but does not show that they were refused, except by inference, or that any exception was taken to the refusal to give the same, nor is the refusal to give them properly assigned as error; but for reasons stated we

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will consider the requests to charge, above mentioned. The court, upon the question of accomplice, charged the jury as follows:

"If from the testimony of the witness Beck, and other testimony in the case, you arrive at a conclusion that Beck had some interest in introducing this liquor, or carrying it from Denison up to Madill, and that he had some knowing guilty connection with it, or some interest in it, was assisting in it in any way, assisting knowingly in this violation of the law, then he would be what is known as an accomplice in this affair; and if the evidence shows him to be such accomplice, then his testimony in regard to the connection of the defendant, Bandy, with the transaction, should be carefully scrutinized by you. And it should also be corroborated in some material point or points connecting Bandy with this offense by other credible evidence in the case, aside from the evidence of the witness Beck himself.”

Counsel for defendant complains that the trial court did not charge the law as found in section 5884, Rev. Laws Okl. 1910, which reads as follows:

"A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof."

The law of the state of Oklahoma, however, was not applicable to a criminal case being tried in a federal court. Except so far as Congress has made specific provisions upon the subject, the common law governs the procedure in criminal trials in the courts of the United States. United States v. Reid, 12 How. 361, 13 L. Ed. 1023; United States v. Central Vt. Ry. (C. C.) 157 Fed. 291; Bucher v. Cheshire R. Co., 125 U. S. 555, 8 Sup. Ct. 974, 31 L. Ed. 795; Logan v. United States, 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; Hanley et al. v. United States, 123 Fed. 849, 59 C. C. A. 153; Diggs et al. v. United States, 220 Fed. 545, 136 C. C. A. 147; Mark Yick Hee v. United States, 223 Fed. 732, 139 C. C. A. 262.

In the case of Hanley et al. v. United States, supra, it was decided that a state statute requiring corroboration of the testimony of an accomplice in a criminal case is not applicable to a prosecution in a federal court, and that a defendant in a criminal case in a federal court cannot complain because the testimony of an accomplice was submitted to the jury, under instructions that it should be received with caution, and carefully scrutinized, and which in effect authorized the jury to give it full credit only in case they found it corroborated as to material facts. The charge as given was as favorable to the accused as he was entitled to under the rule of the common law. As we have said before, there was no exception to the refusal of the court to instruct the jury to find the defendant not guilty; but we have read the evidence in the record, and are satisfied there was no error in refusing to so instruct.

[9] It is claimed that there was no evidence to show that Denison, from which town the intoxicating liquor was alleged to have been carried to Madill, in the state of Oklahoma, was in the state of Texas. Aside from the facts of which the court was entitled to take judicial notice, there was the testimony of Stuart, the train conductor, who testified that on February 11, 1916, he was a conductor, on a Frisco train running from Denison, Tex., to Madill, Okl. It is next claimed that

there was no evidence that the liquor was on this train. But, conceding this fact, it does not destroy the statement of the conductor that the town of Denison was in the state of Texas. It is further claimed that the evidence showed that the witness Beck, rather than Bandy, was the guilty man; but that was, under the evidence, a question for the jury, and they have found that the defendant, Bandy, was the guilty man.

There was evidence to sustain the verdict, and the judgment below is therefore affirmed..

MASSES PUB, CO. V. PATTEN.

(Circuit Court of Appeals, Second Circuit. August 6, 1917.) 1. COURTS: 405(15)-CIRCUIT COURT OF APPEALS-STAY OF INJUNCTION

AUTHORITY OF COURT.

Under Judicial Code (Act March 3, 1911, c. 231) § 129, 36 Stat. 1134 (Comp. St. 1916, § 1121), declaring that where, upon a hearing in equity in a District Court, an injunction shall be continued, refused, or dissolved, an appeal may be taken from such order to the Circuit Court of Appeals, but that the proceedings in other respects in the court below shall not be stayed, unless otherwise ordered by that court or by the appellate court, a judge of the Circuit Court of Appeals may, on appeal from an order granting an injunction pendente lite, stay the operation

of the same. 2. INJUNCTION Om75—SUBJECT OF RELIEF.

Equity has jurisdiction to grant an injunction against an order of the Postmaster General excluding a publication from the mails, solely to

prevent irreparable pecuniary damage. 3. INJUNCTION Om75ACTIONS—NATURE OF ACTION.

An action against a postmaster to enjoin him from excluding a publication from the mails, pursuant to the direction of the Postmaster General,

is not technically one against the sovereign. 4. COURTS ww405(15)-CIRCUIT COURT OF APPEALS-STAY OF INJUNCTION

PROPRIETY.

Plaintiff sued to prevent defendant postmaster from excluding his publication from the mails, pursuant to the order of the Postmaster General. Before decision was rendered in the District Court, plaintiff requested defendant to return the withheld magazines; other arrangements for distribution having been made. Plaintiff's bill, however, was not withdrawn. Held that, on appeal from an order granting an injunction pendente lite restraining defendant from excluding plaintiff's publication from the mails, the operation of the injunction should be stayed on application to a judge of the Circuit Court of Appeals, for plaintiff's bill still sought substantial relief, and, if effect should be given to the injunction, the question would become moot, for the controversy continued

only so long as plaintiff's publications were excluded from the mails. 5. INJUNCTION 75-ISSUANCE-RIGHT TO ISSUE.

The courts will not by injunction interfere, except in the clearest cases, with the action of the great executive departments of the govern

ment in interpreting laws affecting the government. 6. Post OFFICE 22-MAILS-CARRIERS.

In respect to the mails, the United States is not a common carrier, but is pursuing a high governmental duty, and it is at least questionable whether the government can be judicially compelled to assist in the dis-. semination and distribution of a publication which proclaims itself revo

lutionary. Om For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

7. APPEAL AND ERROR Om 458(3)—STAY OF INJUNCTION-EXCLUSION OF MAIL

MATTER.

Plaintiff's publication asserted that laws passed by the United States for the creation of military forces, and the prosecution of war violated the fundamental rights of any free people, that conscription is the destruction of youth, democracy, and labor, and the desolation of the family, and that the United States has attempted to ensnare Russia into a continuance of war for purposes prejudicial to true democracy, and that persons who have denied and resisted the laws, having military success as their object, are worthy of admiration and possible emulation. The publication, however, did not urge resistance to the laws. Act June 15, 1917, forbids any one from willfully causing insubordination, disloyalty, mutiny, or refusal of duty in the military and naval forces of the United States. Held that, though, plaintiff's publication did not expressly urge resistance to conscription, nevertheless, as it tended in that direction, and articles tending to arouse insubordination and disloyalty in the military and naval forces are unmailable, an order enjoining a postmaster from giving effect to the order of the Postmaster General excluding plaintiff's publication from the mails should be stayed, an appeal having been taken to the Circuit Court of Appeals, for plaintiff, having secured other means of distribution, could be compensated by pecuniary damages, and public

interest demands protection against seditious articles. Appeal from the District Court of the United States for the Southern District of New York.

Suit by the Masses Publishing Company against Thomas G. Patten. From an order granting an injunction pendente lite, defendant appeals. On motion to stay injunction. Stay continued.

See, also, 244 Fed. 535.
E. B. Barnes, Asst. U. S. Atty., of New York City, for the motion.
G. E. Roe, of New York City, opposed.
Before HOUGH, Circuit Judge.

HOUGH, Circuit Judge. This motion will be considered under the following heads: I. The practice under the statute. II. The present condition of this litigation as to its object and subject-matter. III. The fact findings of the District Court, and the conclusions there drawn therefrom. IV. The law as suggested to me by those facts. V. The propriety of this motion under the circumstances thus developed, in respect of (1) the rights of parties; (2) the public interests.

[1] I. After considerable experience in appellate practice, and such recent inquiry as I have been able to make, no other instance (under section 129, Judicial Code) of application to a judge of the appellate court to stay an appealed order of this nature is known to me. Such stays, granted by the trial judge, are not uncommon; I have, myself, awarded not a few. They rest on the belief that doubtful questions of law, or difficult contests of fact (or both) are presented by the record, and that the relations of the parties, or exigencies of business are such that (perhaps by the giving of security) no injury will result from letting matters remain in statu quo (except for opinion filed) until decisive action can be had in the Court of Appeals.

There can be no difference in principle, between such an application to the trial judge, and a similar one addressed to a member of the appellate court. Indeed, I think a somewhat stricter rule should justly

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

apply. The trial judge may and often does feel that his findings of fact reached with travail of conscience, may not be unassailable in the view of others equally capable; yet, having done his best, he expresses no misgivings, though they exist and strongly move him to grant the stay.

But one who did not hear the case fully tried and argued, has, I think, small right to base action on facts. Except in the extremest cases, the facts must be assumed as reported from the lower court, whether through judge or jury. Any other attitude on the part of the judge ad quem, would convert the motion into a species of irregular, and often indecent, new trial. For these reasons, it is held that for present purposes, the propriety of granting the stay asked, rests on a case whose facts are literally as found by the District Court. And by facts, I mean, not only facts physical, phenomena seen or heard, but mental conditions or intents, so far as definitely stated.

[ 2-4] II. This action relates only to an alleged property right; i. e., the claim of a New York corporation to have certain second-class matter forwarded to destination through the United States mail. Equity is resorted to solely to prevent irreparable pecuniary damage. Defendant justifies under an order of the Postmaster General, and the Department of Justice defends; but all this does not prevent the suit from being one between private parties, in the same sense as that phrase is true of actions against collectors of internal revenue for illegal exaction of taxes. The action is not against the sovereign, technically.

What the bill demanded, therefore, was that the mail aforesaid, viz., sundry copies of the “Masses,” should be sent forward; and the District Court so ordered on July 26th. It now appears that on the day before (decision being known) plaintiff requested defendant to give back the withheld magazines, and not forward them; other arrangements for distribution having been made.

This means that plaintiff no longer desires the only avowed object of action; the business foundation of the suit has dropped out. But it remains true that the obligation to distribute this particular issue of the "Masses” has a most important bearing on any postmaster's duty to forward future or similar publications. Therefore, as long as the prayer of the bill is unfulfilled, plaintiff has a legally real subject of litigation, although it further appears that plaintiff is not now exposed to any loss not coverable by damages already liquidated or ascertainable.

Defendant's situation, however, is quite different. The order appealed from, if complied with, fulfills the whole object of suit. If reversed, no restitution or restoration of status quo is possible; and in my judgment the appeal becomes a futility, presenting to the appellate court nothing but an interesting moot point. A court may hold a case sub judice, until it becomes moot. The Supreme Court did so lately, in the well-known habeas corpus taken out by Hon. H. Snowden Marshall. 243 U. S. 521, 37 Sup. Ct. 448, 61 L. Ed. 881. But could it be pretended that the Supreme Court should or could have taken cognizance of that appeal, if brought on for argument after the expiration of the Congress which proceeded against Mr. Marshalli I

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