Bradshaw v. United States

15 F.2d 970 (1926)

BRADSHAW
v.
UNITED STATES.

No. 4924.

Circuit Court of Appeals, Ninth Circuit.

November 15, 1926.

Tom Garland, of Portland, Or., for plaintiff in error.

George Neuner, U. S. Atty., and Millar E. McGilchrist, Asst. U. S. Atty., both of Portland, Or., for the United States.

Before GILBERT and RUDKIN, Circuit Judges, and NETERER, District Judge.

RUDKIN, Circuit Judge (after stating the facts as above).

The rulings of the court below on the demurrer to the indictment and on the motion to quash are assigned as error. The basis of the assignment is that the government has improperly attempted to carve three crimes out of one. But if the contention is well founded, the plaintiff in error was not prejudiced, because in the end the court imposed but a single sentence as for a single crime on all three counts.

For the purposes of the record, counsel for the plaintiff in error asked permission to examine the jurors individually upon their voir dire. This request was denied, the court stating that, if counsel had any questions to ask, the court would gladly propound them. The ruling is assigned as error. No further request was made by counsel to examine the jurors individually, no reason was assigned for any such examination, and under the circumstances there was no error in the ruling complained of. Noland v. United States (C. C. A.) 10 F.(2d) 768. See, also, Kurczak v. United States (C. C. A.) 14 F.(2d) 109.

It is next contended that the instructions of the court contain only a general statement of the law relating to the crime of bribery, and, if three separate crimes are charged, the instructions do not attempt to define them, or the elements of which they consist. It is a sufficient answer to this to say that no exception was taken to the charge of the court as given, and no request was made for further instructions. There is, therefore, nothing before this court for review. In any event, the instructions were as full and complete as would seem necessary, in view of the simple nature of the charge.

Section 131 of the Federal Penal Code (Comp. St. § 10301) provides that whoever, directly or indirectly, shall give or offer, or cause to be given or offered, any money, property, or value of any kind, or any promise or agreement therefor, or any other bribe, to any judge, judicial officer, or other person authorized by any law of the United States to hear or determine any question, matter, cause, proceeding, or controversy, with intent to influence his action, vote, opinion, or decision thereon, shall be deemed guilty of an offense, and the plaintiff in error contends that a trial juror does not come within the purview of that section. If it be conceded that the first count of the indictment charges no crime, and we make no such concession, the judgment is still amply supported by the remaining counts, and the error, if any, was without prejudice.

It is next contended that the court should have dismissed all three counts of the indictment of its own motion, because each of the counts fails to charge or allege that the plaintiff in error knew that Lawrence was a juror. Of course, no offense was committed, in the absence of such knowledge; but knowledge is necessarily implied from the facts charged in each of the counts. The first count charges that the plaintiff in error offered and caused to be offered to the juror in question a suit of clothes, with intent to corruptly influence his action, vote, or decision; the second count charges that the plaintiff in error corruptly endeavored to influence and impede Lawrence in the discharge of his duty, by enlisting the aid of one Mason to offer him a bribe if he would render a verdict in favor of the defendants; and the third count is substantially the same. While the indictment contained no direct averment that the plaintiff in error had knowledge that Lawrence was a juror, it does contain averments from which such knowledge is necessarily implied, and that is sufficient, at least, after verdict. Gay v. United States (C. C. A.) 12 F.(2d) 433, 435.

It is lastly contended that the court erred in refusing to grant a new trial because of the bitter denunciation of the plaintiff in error by the assistant United States attorney in his closing argument to the jury. No motion was made to strike the objectional remarks at the time they were made, and there was no request for an instruction in relation thereto. There is therefore nothing before us for review. McDonough v. United States (C. C. A.) 299 F. 30; Maki v. United States (C. C. A.) 12 F.(2d) 668.

The judgment of the court below is affirmed.