United States v. Infusino , 130 F.2d 561 ( 1942 )

MINTON, Circuit Judge.

The defendant-appellant, Frank Infusino, was convicted with twenty-two other persons in seventeen substantive counts and two conspiracy counts, all of which grew out of the illicit manufacture and handling of alcohol. All of the defendants were charged with the offense set forth in each and every count of the indictment. Four of the defendants pleaded guilty, and the case went to trial against the remaining nineteen defendants on each and every count of the indictment. At the conclusion of the evidence by the government, the court on its own motion dismissed all counts as to the defendant Infusino except 2, 6, 12, 4, 8, 18 and 19. On these counts the jury found the defendant Infusino guilty, and the court sentenced him to six months’ imprisonment on each of counts 2, 6 and 12, and nine months’ on each of counts 4 and 8, to run consecutively, aggregating three years; and two years’ imprisonment and two thousand dollars fine on count 18 and two years’ on count 19, to run concurrently with count 18, but both to run consecutively with the other counts, making a total of five years’ imprisonment.

No motion for a directed verdict or for a new trial or in arrest of judgment or any other kind of motion was presented to the trial court on behalf of this defendant.

From that kind of record this appeal is taken. Two questions are attempted to be presented. First, it is urged that it was error to submit to one jury distinctive offenses charged against different defendants, even though such charges were in different counts; and second, that the evidence is not sufficient to support the verdict. We shall consider these points in this order.

Each and every defendant was charged with having committed each and every offense alleged in the indictment. As far as this record reveals, no challenge was ever made at the trial as to the procedure followed. The trial judge had no way of knowing what counts the evidence would sustain. The trial court was zealous for the protection of the rights of the defendant and, as we have indicated, dismissed twelve counts as to this defendant. If the defendant Infusino had any such knowledge or information as to which counts there might be no evidence implicating him, he did nothing about it in the trial court. If at any stage before or during the trial the defendant Infusino felt that he was improperly placed upon trial with other defendants on counts of an indictment on which he felt he was not guilty, it was his duty to challenge this procedure before the trial court as the opportunity to do so was presented. This the defendant did hot do. Why, we do not know. He might have been willing to take his chances with the jury and have hoped to gain through it an acquittal. Certainly he ought not now be heard to complain that the court permitted him to go to trial without objection. It was the duty of the defendant to challenge the court’s attention to the procedure if it was wrong, and procure the court’s ruling thereon before he could complain of error. Until that time, the court had had no chance to commit error. The objection cannot be presented here for the first time. Logan v. United States, 144 U.S. 263, 296, 12 S.Ct. 617, 36 L.Ed. 429; Bucklin v. United States (No. 2), 159 U.S. 682, 685, 16 S.Ct. 182, 40 L.Ed. 305; Haynes v. United States, 8 Cir., 101 F. 817; Goldberg v. United States, 5 Cir., 280 F. 89; Hostetter v. United States, 8 Cir., 16 F.2d 921.

Secondly, it is contended that the evidence is not sufficient to support the verdict. No challenge as to the sufficiency of the evidence was made in the trial court by defendant Infusino by any means whatsoever. Under such circumstances, the question may not be raised here.

“The sufficiency of the testimony to support the verdict was not raised at the conclusion of all the testimony in the court below, and for that reason the question is not properly before us for review. Under such circumstances courts will only look into the record far enough to see that there has been no miscarriage of justice, or that there is some testimony tending to support the verdict.” Marco v. United States, 9 Cir., 26 F.2d 315, 316. See also Tincher v. United States, 4 Cir., 11 F.2d 18; Ng Sing v. United States, 9 Cir., 8 F.2d 919; Robins v. United States, 8 Cir., 262 F. 126.

If in the exercise of our discretion we were disposed to examine the record as to whether or not there was any testimony tending to support the verdict, we would have to look to the record to see if there was a bill of exceptions bringing the evidence into the record. Rule 9 promulgated by the Supreme Court governing criminal procedure, 18 U.S.C.A. following section 688, provides: “Bill of Exceptions. In cases other than those described in Rule 8, the appellant, within thirty (30) days after the taking of the appeal, or within such further time as within said period of thirty days may be fixed by the trial judge, shall procure to be settled, and shall file with the clerk of the court in which the case was tried, a bill of exceptions setting forth the proceedings upon which the appellant wishes to rely in addition to those shown by the clerk’s record as described in Rule 8. Within the same time, the appellant shall file with the clerk of the trial court an assignment of the errors of which appellant complains. The bill of exceptions shall be settled by the trial judge as promptly as possible, and he shall give no extension of time that is not required in the interest of justice.”

An examination of the record reveals that judgment was entered March 7, 1942. Notice of appeal was filed March 10, 1942. On March 11, 1942 the trial court signed an order fixing April 9, 1942 as the time for filing the bill of exceptions. This date coincided exactly with the expiration of thirty days from the date of the appeal, so the court’s order did not really extend the time within which to file the bill of exceptions. The rule and the court’s order both fixed April 9, 1942 as the date for the filing of the bill of exceptions.

The record before us shows the following entry:

“Copy of this proposed bill of exceptions received.

“Carl R. Becker, “Asst. U. S. Atty.

“Endorsed: * * * Bill of Exceptions (Cert, of Evidence). Lodged April 9, 1942. B. H. Westfahl, Clerk. Filed May 11, 1942. B. H. Westfahl, Clerk.”

The judge’s certificate in the record at the conclusion of the purported bill of exceptions shows that it was settled and signed on May 11, 1942, the day on which the purported bill of exceptions was filed. A reading of the rule will disclose that the bill must be settled, that is, authenticated by the judge’s signature, before it can be filed. The transcript does not become a part of the record as a bill of exceptions until the court has settled or authenticated it and the same is filed within the proper time. Lodging the same with the clerk is not a filing, especially before the transcript has been settled and authenticated. Sanford v. United States, 69 App.D.C. 44, 98 F.2d 325. The bill must be filed within the time fixed by Rule 9 or within such an extension of time as the court may have properly granted. In the case at bar we find that the bill was not filed until a month and two days after the time fixed by Rule 9 and the court’s order. Therefore, the bill of exceptions is not in the record. Miceli v. United States, 7 Cir., 87 F.2d 472; Trant v. United States, 7 Cir., 88 F.2d 475; Dreher v. United States, 9 Cir., 92 F.2d 859; See, also, 129 A.L.R. 733, note.

This court is therefore presented with the proposition first: that no question is presented on the sufficiency of the evidence because no challenge thereto was made in the trial court, and whether we look at the evidence at all is within our discretion and is for the limited purpose of determining whether there is any testimony to support the verdicts. If we decide to exercise our discretion to look at the evidence, we discover the evidence is not in the record because the bill of exceptions was not settled and filed in time. We think it is within our discretion to extend the time for filing the bill to embrace the period up to the time it appears from the record it had been settled and filed, to wit, May 11, 1942. Sanford v. United States, 69 App.D.C. 44, 98 F.2d 325. We find nothing in this case to appeal to the court’s discretion, first, to consider the evidence at all in the absence of the question having been raised below, and then again exercising our discretion to perfect the record so as to get the evidence properly before us for consideration. There is nothing in the record to excuse the failure to raise and preserve any questions in the trial court, nor is it apparent why the bill of -exceptions could not have been settled and filed on the date the transcript was lodged with the clerk, which was the date fixed for its filing, or an extension of time obtained from this court.

In the state of this record, we would be justified in refusing to consider the evidence attempted to be brought before us by the purported bill of exceptions. Notwithstanding the failure of defendant to present a proper record, we have examined the transcript of the evidence and we find there is an abundance of evidence to support the conviction on the conspiracy counts and there is some evidence to support the conviction on each of the other counts.

The judgment is affirmed.