Petitioners Brief — Garrison v. United States

Supreme Court of the United States

WILLIE GRAY GARRISON, PETITIONER,

VS.

UNITED STATES OF AMERICA, RESPONDENT.

BRIEF IN SUPPORT OF PETITION FOR

CERTIORARI.

This application is for review of a judgment of the

United States Circuit Court of Appeals for the Fifth Cir-

cuit, affirming the conviction of petitioner in the Dis-

trict Court of the Northern District of Alabama on a

charge of conspiracy in violation of Criminal Code, Sec-

tion 19 (18 U.S. C. A. 51).

STATEMENT OF FACTS.

Petitioner and his co-defendant, one Earliest Walker,

a colored tenant farmer, were convicted (R. 11) on the

first of two counts of an indictment (R. 2-5) charging

conspiracy to injure, oppress, threaten, and intimidate

one J. G. Dorough because of his having exercised the

privilege of informing of violations of the Revenue Laws

of the United States. Petitioner was sentenced to five

years imprisonment and a fine of $1,000 (R. 13).

After motion for new trial (R. 14) was overruled (R.

11-12), appeal was prosecuted to the Circuit Court of Ap-

10

peals for the Fifth Circuit (R. 120 et seq.) on grounds too

numerous and varied to enumerate. The Court of Appeals

affirmed (R. 152, 157), one judge dissenting (R. 155),

That part of the first count of the indictment which

precedes the semicolon near the center of Page 3 of the

Record is identical with that part of the second count of

the indictment which precedes the semicolon at the top

of Page 5 of the Record. An analysis of these two identi-

cal charges will show that they charge all of the, neces-

sary elements of the offense denounced by Criminal Code,

Section 19, and that they would have been sufficient as

against demurrer if neither count had contained any ad-

ditional charge. An analysis of the matter following the

semicolons in both counts will show that the only differ-

ence between the two counts is that each one undertakes

to charge an overt act, and that the draftsman relied upon

a different overt act for each count to charge different

offenses. It will also be noted that these alleged overt acts

are charged in language which would normally have been

used to charge a substantive offense, had the overt act it-

self been a crime.

It may be inferred from the foregoing analysis that

the United States Attorney proceeded under three erro-

neous conclusions of law. These are: (1) That overt acts

were a necessary element of the offense under Criminal

Code, Section 19, and that it was necessary to charge

them in the indictment; (2) That different overt acts

committed pursuant to the same conspiracy would con-

stitute different and additional offenses; and (3) That the

overt acts charged in the superfluous portions of the two

counts were themselves offenses against the United

States. Whatever misapprehensions the United States

Attorney may have had, the Judge of the trial court ap-

peared to have been misled by these allegations and the

course of the trial. He charged the jury as follows:

“It is the law, gentlemen, of the United States,

under Section 51, Title 18, I believe, of the Code of

11

the United States, that it is unlawful for anyone,

any two or more persons, to conspire, confederate or

agree to injure or oppress or threaten or intimidate

any citizen of the United States in the exercise of

his privileges and rights under the Constitution and

laws of the United States. It is also unlawful to in-

jure, oppress or threaten or intimidate anyone, any

resident or any citizen of the United States who has

exercised his rights and privileges which the Consti-

tution and laws of the United States afford him * * *

“The question for you to determine is, did these

defendants, or either of them, oppress or threaten or

intimidate Mr. Dorough because of his having re-

ported the activities of the defendant in the whiskey

business?

“This law is for a purpose., It is an old law on

the statute books of the United States. We have

rights and privileges as citizens, when we are citi-

zens, as Mr. Dorough is a citizen of the United

States as testified to. * * *” (R. 112).

Notwithstanding the numerous errors assigned on ap-

peal, the principal ground relied upon for reversal in the

court below was the insufficiency of the evidence to sus-

tain a conviction; and particularly the lack of evidence to

show any confederation or agreement between petitioner

and Earliest Walker.

The evidence which the Court of Appeals felt suf-

ficient to sustain the conviction was the testimony of

Eliza Brunson (R. 25) that petitioner on May 9, 1942,

came to her house (R. 26) in a truck in which he was

riding with Walker, got out and walked some distance

to where Dorough was seated and committed the overt

act alleged in the first count, and that Walker knew that

her son had given information to Dorough that petitioner

was engaged in the liquor business (R. 32); that when

Walker left the truck in which he and petitioner had

been riding, Walker carried a pistol with him; and the

testimony of Dorough (whose credibility was somewhat

impeached, R. 86 to 97) that he had seen petitioner and

12

Walker riding together in petitioner’s truck, together with

one P. G. Walker, a brother of the other defendant, on

several occasions (R. 66). In its opinion, the court also

refers to testimony that Walker held a rifle in his lap

while petitioner committed the overt act charged in the

first count, but we have been unable to find any such

testimony in the record.

In addition to the foregoing, there was evidence that

a large whiskey still had been located and destroyed at a

point about three miles from petitioner’s residence, that

Dorough had given statements to the 4gents of the Alcohol

Tax Unit to the effect that petitioner was engaged in the

liquor business, that petitioner had been arrested, along

with three negroes not including Walker, and charged

with maintaining the distillery mentioned above (presum-

ably on information furnished by Dorough); that peti-

tioner had been arrested some several years earlier on a

charge of resisting an officer, and that several witnesses

considered petitioner a bad man according to the standards

of his community. However, it does not appear that the

Circuit Court of Appeals considered this last mentioned

testimony as being evidence which the jury might have

considered in making up its verdict.

In its opinion, the Circuit Court of Appeals said:

“The circumstances convinced the jury that there

was concert of action and community of purpose

* * * From these facts and circumstances the jury

could have concluded that Walker was not only an

informed participant, but that he was the gun-

bearer for Garrison, and that Garrison and Walker

were not out to shoot rabbits. * * * There was evi-

dence in the record, which the jury evidently be-

lieved, upon which it could find that there was an

understanding and concert of action between Garri-

son and Walker, and there is ample evidence of the

commission by Garrison of the overt acts alleged in

the first count. The act of one of the conspirators is

the act of all.”

13

The last two sentences in the foregoing quotation

show clearly that the Circuit Court of Appeals labored un-

der the same misapprehensions as to the law, which in-

fluenced the United States Attorney to charge identical of-

fenses in different counts appending to these charges addi-

tional charges of overt acts thought to be crimes them-

selves and necessary ingredients of the offense denounced

by Criminal Code, Section 19, and that the circumstance

of the commission of these overt acts was sufficient evi-

dence, if proven, to sustain a conviction of conspiracy to

commit them.

The reliance of the court below upon the return of

a verdict of guilty, demonstrates its reluctance to disturb

a verdict after a full hearing and trial before a constitu-

tional jury. Petitioner submits that when the verdict is

analyzed against the background of the indictment and the

charge of the court, it cannot be said with any degree

of certainty that the jury found the defendant guilty of

conspiracy, and did not confine their consideration to

whether or not petitioner and Walker were merely guilty

of the overt act charged in the first count, under the erro-

neous instruction of the court.

In this state of the record petitioner filed a petition

for rehearing, renewing the grounds alleged in the trial

court. He also made his petition for rehearing a motion

for a new trial, raising questions of law. The petition

was overruled and the motion was ignored.

14

SUMMARY OF ARGUMENT.

New Trial.

The right to a new trial is based upon statute (Judi-

cial Code, Section 269) and exists wherever such relief

could be had in courts of law. State v. Messino, 325 Mo.

743, 30 S. W. 2d 750, 755; Commonwealth v. Rollins, 242

Mass. 427, 136 N. E. 360; Mattox v. United States, 146 U.S.

140; Slade’s Case, Style 138; Wood v. Guston, Style 466;

Ash v. Ash, Comberback 357; Woodford v. Eades, 1 Strange

425; Barker v. Dixie, 2 Strange 1051; Bright v. Eynon, 1

Burrow 390; Rex v. Francis, 2 Strange 1015.

The decisions of this court do not require the holding

that the allowance or refusal of a new trial rests in the

sound discretion of the trial court and its action is not

subject to review. Mattox v. United States, 146 U. S. 919;

Haws v. Victoria Copper Mining Co., 160 U. S. 303, 313;

Spreckels v. Brown, 212 U.S. 208, 215; Holmgren v. United

States, 217 U. S. 509, 521; Hendrix v. United States, 219

U. S. 79, 91; McDonald v. Pless, 238 U. S. 264, 268; Hyde

v. United States, 225 U. S. 347, 391; Jones v. Spencer, 77

L. T. R. 536.

Federal Statutes authorize courts of appeals, as well

as trial courts, to entertain motions for new trials as to

any matter and to the same extent as where the appellate

court could reverse or the trial court could stay judgment

upon a verdict. Judicial Code, Section 269 (28 U. S.C. A.

391); Act of January 31, 1928 (28 U.S. C. A. 86la).

While doing k . service to the announced rule, most

circuit courts of appeals actually grant new trials and re-

view the actions of the trial courts with respect to mo-

tions for new trials.

15

First Circuit:

Katz v. United States, 273 Fed. 157.

Lopez v. United States, 17 F. 2d 462.

Second Circuit:

Harrison v. United States, 7 F. 2d 259, 262.

Third Circuit:

Ogden v. United States, 112 Fed. 523.

Fourth Circuit:

Towe v. United States, 238 Fed. 557.

Smith v. United States, 281 Fed. 696.

Sixth Circuit:

Pugh v. Bluff City Excursion Co., 177 Fed. 399.

Detroit United Ry. Co. v. Craven, 13 F. 2d 352.

Tate v. Baugh, 264 Fed. 892.

Bates v. United States, 269 Fed. 563.

Kighth Circuit:

Paine v. St. Paul Union Stockyard Co., 35 F. 2d

624.

Sulzbacher v. Continental Casualty Co., 88 F. 2d

122.

Ninth Circuit:

Murhard Estate Co. v. Portland, Seattle Ry. Co.,

163 Fed. 194.

Smith v. United States, 231 Fed. 25.

Beaton v. United States, 5 F. 2d 966.

Brown v. United States, 9 F. 2d 588.

Tenth Circuit:

Shannon v. Shaeffer Oil and Refining Co., 51 F.

2d 878.

16

Fifth Circuit:

Bernal v. United States, 241 Fed. 339.

Bradley v. United States, 264 Fed. 79.

Stokes v. United States, 93 F. 2d 744.

Prisament v. United States, 96 F. 2d 865.

Jordan v. United States, 120 F. 2d 65.

Coplin v. United States, (9 Cir.) 88 F. 2d 652.

Casey v. United States, (9 Cir.) 20 F. 2d 752.

United States v. Glasser, (7 Cir.) 116 F. 2d 690,

reversed in part Glasser v. United States, 315

U. S. 60.

The right to a jury trial includes the right to have the

jury correctly instructed as to the law of the case. Con-

stitution of the United States, Amendment Six. Ex parte

United States, (7 Cir.) 101 Fed. 870, 131 A. L. R. 176.

17

ARGUMENT.

While the record in this case is small, the questions

which might be raised are numerous. However, those

which seem to be most appropriate for the attention of

this court are the first three set out in the foregoing pe-

tition under the Reasons for Allowance of the Writ.

New Trial.

At common law, an accused standing convicted of a

misdemeanor might apply for a new trial, but no such

remedy was afforded for one convicted of a felony; che

remedy in the latter case being to grant a stay during

which an application might be made for a pardon. State

v. Messino, 325 Mo. 743, 30 S. W. 2d 750, 755. At the

present time in the United States, the occasions, condi-

tions and procedure for new trials in criminal proceed-

ings are generally prescribed by statute. Commonwealth

v. Rollins, 242 Mass. 427, 136 N. E. 360. New trials are

authorized in Federal Courts by Judicial Code, Section

269 (28 U. S. C. A. 391), the first sentence of which was

taken from the Judiciary Act of September 24, 1789, and

reads as follows:

hew ~All United States courts shall have power to

grantAtrials, in cases where there has been a trial by

jury, for reasons for which new trials have usually

been granted in courts of law.”

The first criminal case decided by this court under

the foregoing provision was that of Mattox v. United

States, 146 U. S. 140, in which this court said:

“The allowance or refusal of a new trial rests in

the sound discretion of the court to which the appli-

cation is addressed, and the result cannot be made the

subject of review by writ of error (Henderson v.

ERPS ERO IY EIT PRES

LE AIP JOAN RAIT Cp OP ROI 1 AAO NO Fk EL LRN Lie OT Ey A ILE

18

Moore, 9 U. S., 5 Cranch 11; Newcomb v. Wood, 97

U. S. 581) but in the case at bar the District Court

excluded the affidavits, and, in passing upon the mo-

tion, did not exercise any discretion in respect of the

matters stated therein.”

For the failure of the trial court to consider the affidavits

submitted with the motion, this court reversed and or-

dered a new trial.

It will be noted that the two cases cited in the Mattox

case were both civil cases, and we have been unable to

find where either this court or any other Federal Court

has made any distinction between civil and criminal cases

in the granting or refusal of new trials.

In Slade’s case, Style 138 (1648), Barron Atkins stayed

the judgment upon a verdict because he thought it was

wrong, and Bacon, Justice, said that judgments had been

arrested in the Common Pleas upon such certificate, but

Roll, Justice, held that it ought not to be stayed, for it

was too arbitrary and that the only remedy was by writ of

attaint. However, several years later, Chief Justice Glyn,

in Wood v. Guston, Style 466 (1655), said that it was in

the discretion of the court in some cases to grant a new

trial, but that this must be a judicial, and not an arbi-

trary discretion, and added that it was for the people’s

benefit that it be so. In Ash v. Ash, Comberbach 357

(1697), Holt, C. J., granted a new trial because the jury

was shy of giving a reason for their verdict, thinking they

had an absolute despotic power. In Woodford v. Eades,

1 Strange 425 (1721), the verdict of the jury was set aside

and a new trial granted because of the inadequacy of the

awards, this conclusion being inescapable on purely legal

principles. However, in Barker v. Dixie, 2 Strange 1051

(1736), the verdict would not be disturbed notwithstand-

ing it was for merely nominal damages where the amount

of the award was within the sole discretion of the jury.

Undoubtedly this distinction characterized the law of Eng-

land on the subject until the decision of Lord Mansfield

19

in the case of Bright v. Eynon, 1 Burrow 390 (1757), in

which there was a judicial analysis of the verdict on the

basis of which a new trial was granted without regard to

whether the court was basing its conclusion upon ques-

tions of law or upon the broad ground that the jury acted

contrary to the weight of the evidence.

While the foregoing cases were all civil matters, their

consideration here is thought appropriate, since no dis-

tinction is made under Federal Statutes between civil

and criminal cases. However, the case of Rex v. Francis,

2 Strange 1015 (1735), provides an excellent example of

the manner in which the rights of an accused were pro-

tected by the reservation of questions arising at the trial.

The functions of the court in the matter of discerning

the law which determines the case from the. evidence

heard on the trial is best epitomized by Lord Chief Justice

Eyre in Gibson v. Hunter, 2 H. Blackstone 187 (House

of Lords, 1793).

Decisions of the Supreme Court of the United States Since

the Mattox Case.

It has already been noted that in Mattox v. United

States, 146 U. S. 919, the court said that the allowance or

refusal of a new trial rests in the sound discretion of the

court to which the application is addressed. The court did

not say that the allowance rested in the discretion of the

trial court, as most of the latter decisions state the rule.

The Mattox case is cited more often by the various cir-

cuit courts of appeals on this proposition, than any other

case. However, as has been noted, this court in the Mat-

tox case, reviewed the action of the trial court in exclud-

ing affidavits, considering the matter as one of law, and

ordered a new trial in the trial court.

The Mattox case is first cited by this court in Haws

V. Victoria Copper Mining Company, 160 U. S. 303, 313,

in which the court denied the motion for new trial. The

court does not say that the grant or refusal is within the

20

discretion of the trial court, but says that the contention

that the trial court did not consider affidavits was fully

answered by the recitals of the order showing that the af-

fidavits were considered, which took the case out of

the rule announced in the Mattox case.

The case is next cited by this court in the case of

Spreckels v. Brown, 212 U. S. 208, 215, where the court

disposed of objections to the procedure of the trial court

in denying a motion for new trial by pointing out that the

order overruling the motion was right on other grounds.

The first case citing the Mattox case and announcing

the “sound discretion of the trial court” rule is Holmgren

v. United States, 217 U. S. 509, 521. It does not cite

the Mattox case for this proposition, but relies upon sev-

eral civil cases for this expansion of the rule. However,

the critical language is coupled with the statement “and

its action in that respect cannot be made the basis of re-

view by writ of error from this court.”

No objection can be made to the statement that “the

allowance or refusal of a new trial rests in the sound dis-

cretion of the trial court,” nor that ‘“‘its action in that re-

spect cannot be made the basis of review by writ of error.”

The authority granted by Judicial Code, Section 269, to

“all United States courts” is to grant new trials where

they have usually been granted in the courts of law. Cf.

Jones v. Spencer, 77 L. T. R. 536 (H. of L., 1898). The

power must exist on appeal, whether the error be one orig-

inally assigned, made the basis of a new motion, or be

noticed by the court.

The next citation of the Mattox case by this court is

Hendrix v. United States, 219 U. S. 79, 91. In that case

this court affirmed the action of the trial court in deny-

ing the motion for new trial based on an affidavit of a

witness impeaching the verdict touching a matter which

had been held improper in the Mattox case.

In McDonald v. Pless, 238 U. S. 264, 268, the Mattox

case is cited as an instance in which evidence was re-

Sete ae GT HLS Pee IE TOR AE NCL, SIRES I OO TTL A

21

ceived that the jury acted improperly. The case also cites

the majority opinion in Hyde v. United States, for the

proposition that the jurors may not impeach their ver-

dict. The Hyde case being a criminal prosecution for con-

spiracy, the dissenting opinion of Mr. Justice Holmes may

be of interest. In it, he says (225 U. S. 391):

“It is one of the misfortunes of the law that

ideas become encysted in phrases and thereafter for

a long time cease to provoke further analysis.”

This observation seems apropos at this time in connection

with the oft repeated statement that a motion for a new

trial rests in the sound discretion of the trial court, and

its action may not be questioned on review.

Under Federal Statutes.

It will hardly be disputed that the purpose of Judicial

Code, Section 269, was to preserve all of the substantial

rights of a defendant which theretofore had been pro-

tected by a motion for a new trial in a court of law. How-

ever, the courts of law created by Federal Statutes in the

United States differed, in many respects, from the courts

of law previously existing in England and in the various

states. There was little reason for the exercise of power

by an appellate court to review the action of the lower

court by writ of error where the effect of the writ of er-

ror, if sustained, would be to obtain a new trial or the

acquittal and discharge of the defendant. Moreover, un-

der the practice of the King’s Bench, when a special ver-

dict was returned and the Judge or Court reserved rul-

ing and the entry of judgment, the judgment to be entered

would be the result of the consideration of the full court,

unless the judges decided that the verdict would not sup-

port a judgment, in which case the defendant was dis-

charged or a new trial ordered. In any event, if the in-

dictment, the charge of the court and the verdict, when

construed together, left doubt as to whether or not the

jury had found on sufficient evidence that the accused

22

was guilty of the offense charged in the indictment, no

final judgment of conviction and sentence could be en-

tered. If such doubts should arise, instead of support-

ing the verdict and authorizing the reviewing courts or

judges to say that the final judgment was proper, they

required the stay of judgment and further proceedings.

The act of January 31, 1928 (28 U. S. C. A. 86la),

provides that

“The writ of error in cases, civil and criminal,

is abolished. All relief which heretofore could be ob-

tained by writ of error shall hereafter be obtainable

by appeal.”

Although the term “appeal’’ is often given various mean-

ings, and is sometimes broadly used to designate any pro-

ceeding for review, in its technical and limited sense it

means a proceeding for review by which the whole case

is transferred to a higher court for a trial de novo and

independent final determination. Our constitutional guar-

anties, as well as certain statutory inhibitions, make clear

that the substitution of appeal for writ of error did not

contemplate trial anew of questions of facts in our courts

of appeal. However, there is no limitation upon the

power of the court to afford new consideration to questions

of law which arise on the record. The only limitation

in this respect seems to be the inclination of the courts

to entertain.

The sufficiency of the evidence to sustain a verdict of

guilty in a criminal case is clearly a question to be de-

termined by the court, and not the jury. While the scales

may be so evenly balanced that the court cannot determine

the sufficiency except on the basis that the jury has found

in one direction or the other, if such a situation arises, it

is essential to know that the verdict speaks the finding

of the jury upon the precise problem to be determined in

settling the litigation. It, therefore, becomes necessary to

23

relate the consideration of the matter to the situation of

the court of the King’s Bench where judgment has been

stayed on the return of a special verdict.

In the present case, if the Court of Appeals would be

influenced by the fact that the jury found the defendant

guilty on the first count, it must not overlook the fact

that the jury said that the defendant was not guilty on

the second count, for that was also a necessary conse-

quence of its action. The court must read from the ver-

dict when projected against the background of the charge

of the court, the exact language of that part of the first

count of the indictment which precedes the semicolon as

mentioned in the Statement of Facts. The considerations

which preclude the grant of a new trial by the Appellate

Court do not differ from those which preclude the reversal

of a failure to direct the verdict, the admission or exclu-

sion of evidence, the grant or denial of a continuance, or

a finding of facts where the Judge is the tryer.

Circuit Court of Appeals Decisions.

The Circuit Court of Appeals decisions relating to

motions for new trials are almost too numerous to enu-

merate, or to exhaust even when confined to those which

cite the Mattox case. However, a few are considered in

the next few paragraphs.

In Katz v. United States, 273 Fed. 157, the First Cir-

cuit Court stated that

“It has only been in cases where the trial judge

has refused to exercise his discretion and to consider

the motion and affidavits offered in its support that

his ruling has been reviewed, as in Mattox v. United

wales 7 * *”

This case was followed in Lopez v. United States, (1 Cir.)

17 F. 2d 462.

The Second Circuit, in Harrison v. United States, 7 F.

2d 259, 262, said,

24

“Under authorities too numerous to mention, we

should have no jurisdiction to review a decision of

this motion, however erroneous. But it is equally

well settled that, if the Judge declined to entertain

the motion at all, the defendant is deprived of a right

to which he is entitled. Mattox v. United States.

* oe Rm?

The record in this case showed that the trial court sup-

posed that the recantation of a witness could not be

ground for a new trial, and that this was his only rea-

son for refusing to consider the motion. Finding this to

be erroneous, the Second Circuit reversed and remanded,

with direction to consider the motion. Here we have a

clear case of a review of the action of the trial court on

a motion for new trial on questions of law.

The Third Circuit, in Ogden v. United States, 112 Fed.

523, stated that the denial or grant of a new trial was

within the sound discretion of the court, but that the

court must exercise its discretion, and a failure to do so

would be reversible error. In that case the motion set

out that the jury took the indictment with it when it

retired for its deliberations. Verdicts of guilty rendered

at a former trial were endorsed on the back of the indict-

ment. Citing the Mattox case, the court found that the

trial Judge had failed to exercise his discretion and re-

manded the cause for a new trial. (Query: What would

have been the conclusion of the Court of Appeals if the

trial court had exercised its discretion and denied the mo-

tion for a new trial?)

In the Fourth Circuit the situation seems to be some-

what confused. In Towe v. United States, 238 Fed. 557,

the court reiterates the hackneyed talisman of discretion

not subject to review upon writ of error, and cites nu-

merous cases. However, in Smith v. United States, 281

Fed. 696, the doctrine is first announced in all its vigor.

Thereafter the court says,

25

“These immunities from review, as respect the

original motion for a new trial and a motion based

upon after-discovered evidence, are predicated upon

the court’s having reached a correct conclusion as to

the facts, and of its having given proper consideration

to the affidavits offered in support of the new trial.”

The court then proceeds to consider the affidavits and

the motion, and concludes that the court could not pos-

sibly have reached a correct conclusion as to the facts,

and itself awards a new trial. The similarity of that case

to the one at bar is striking. The facts which compelled

the Court of Appeals to grant the new trial were that

the jury had acquitted on the fourth and fifth counts and

convicted on the sixth. The court found that if the jury

believed the defendant not guilty on the fourth and fifth

counts, it necessarily believed him not guilty on the sixth

count; and held that in this state of the record the con-

viction could not be allowed to stand.

In Pugh v. Bluff City Excursion Co., 177 Fed. 399,

the Sixth Circuit apparently began an excursion of its

own away from the trend of the decisions. In that case

it said,

“It is the general rule that the granting of a

new trial is a matter of discretion and will not be re-

viewed. But it is not so where the verdict is incon-

sistent on its face and shows the abuse of power on

the part of the jury. If the granting of the motion

is positive duty, it is not discretionary. If it is nec-

essary to correct a mistrial, it becomes a positive

duty to set aside the erroneous proceedings and grant

a new trial.”

While the case of Detroit United Ry. v. Craven, (6 Cir.)

13 F. 2d 352, is distinguishable on its facts the trend of

decisions by this circuit did not follow the Pugh case.

Tate v. Baugh, 264 Fed. 892, Bates v. United States, 269

Fed. 563.

In Paine v. St. Paul Union Stockyard Co., 35 F. 2d

624, the Eighth Circuit repeats the stock phrases but

notes that the trial court has the power to grant a new

trial where all of the evidence was not introduced by the

moving party because of belief that the evidence already

introduced was sufficient. This view is expanded in

Sulzbacher v. Continental Casualty Co., 88 F. 2d 122,

where the motion for a new trial presented a new con-

tention as to the law of the case. The theory advanced in

support of the motion was contrary to the contentions of

counsel on both sides when the case was tried, as well

as with the views then entertained by the court. The

trial court would not establish the precedent of enter-

taining such motion after the trial, but the Circuit Court

of Appeals reversed.

The Ninth Circuit felt bound by the decisions of this

court in Murhard Estate Co. v. Portland, Seattle Ry. Co.,

163 Fed. 194, 196, and held that although the ground urged

was proper for a motion for new trial, the determination

rested in the sound discretion of the trial court and could

not be reviewed. However, in Smith v. United States,

931 Fed. 25, it was held that the court would review to

the extent of determining whether or not the trial court

considered all of the evidence offered in support of the

motion. See also Beaton v. United States, 5 F. 2d 966,

and Brown v. United States, 9 F. 2d 588.

The Tenth Circuit, in the case of Shannon v. Shaeffer

Oil & Ref. Co., 51 F. 2d 878, stated that an order over-

ruling a motion for a new trial was not an appealable or-

der, citing Luckenbach SS Co. v. United States, 272 U.S.

533, and Regan v. Akin, 130 U. S. 109. Here we have a

paraphrasing of the usual formula, but the interesting

point in this case is that neither of the authorities cited is

in point.

26

Fifth Circuit Court of Appeals Cases.

In Bernal v. United States, 241 Fed. 339, the court

said,

— PV TR EO EB PQs PEP Fe AE Mos CF LON IPD a ea eg ae ee ne Sete wae

3 r

27

“It is elementary that the granting of a new

trial is within the sound discretion of the court, and

error cannot be predicated upon a refusal.”

And again, in Bradley v. United States, 264 Fed. 79, the

Fifth Circuit said that,

“The refusal or granting of a motion for a new

trial is in the sound discretion of the trial judge and

cannot be reviewed upon writ of error or appeal.”

Citing Mattox v. United States.

It would seem that these two cases would establish

a formula for the Fifth Circuit. However, in Stokes v.

United States, 93 F. 2d 744, Judge Hutchison (who did

not sit in the case at bar) reviewed the showing made in

support of a motion for new trial, and found from the

entire record that there had been no prejudicial error.

In Prisament v. United States, 96 F. 2d 865, Judge

Holmes (who did not sit in the case at bar) would not

follow the earlier cases from the Fifth Circuit. Instead,

he cites one case from the Ninth Circuit in which no

authorities are cited (Casey v. United States, 20 F. 2d 752,

Certiorari denied 276 U. S. 413). It should be noted that

the Casey case applies a rationale to the ruling of the

court under the oft repeated statement that the granting

or refusing of a new trial is within the sound discretion

of the court. The only other Fifth Circuit Judge who

participated in the decision of this case who remains on

the bench, is Judge Sibley, who filed a dissenting opinion

in the case at bar. Not only does the opinion in the

Prisament case ignore the former decisions of the Fifth

Circuit, as well as the Mattox case, but it passes the

question of the reviewability of the action of the trial

court and demonstrates conclusively that the action of the

trial court was correct under well recognized legal prin-

ciples.

In Jordan v. United States, 120 F. 2d 65, Judge Mc-

Cord (Judges Sibley and Holmes concurring) gave full

einai

28

consideration to the grounds alleged for the motion, but

did not cite any decision of the Fifth Circuit (not even the

Prisament case), relying instead upon United States y,

Glasser, (7 Cir.) 116 F. 2d 690; Coplin v. United States,

(9 Cir.), 88 F. 2d 652; Casey v. United States, (9 Cir.)

20 F. 2d 752; the last case being the one relied upon in

the Prisament case. The Glasser case has been reversed

by this court. Glasser v. United States, 315 U. S. 60;

and in the Coplin case the motion was fully considered by

the court of appeals.

Thus, it appears, although the Fifth Circuit has not

attempted any modification or refinement upon the ac-

cepted formula for disposing of motions for new trial,

none of the four judges named is in full sympathy with

the rule, as most frequently announced and is willing to

base his decision upon any of the cases which follow

orthodox lines.

Petitioner submits that in view of the substitution

of appeals for writs of error and the ambiguous state of

the jurisprudence upon the subject of new trials, this

court should re-examine the principles announced in the

Mattox case and redefine the powers and functions of the

trial court and the courts of appeal on motion for new

trial.

Right to Have the Law Correctly Stated to the Jury.

As has been pointed out, a grievous error was com-

mitted in charging the jury. In Ex parte United States,

(7 Cir.) 101 F. 2d 870, 131 A. L. R. 176, it was said that

the right to trial by jury given by the Sixth Amend-

ment to the Constitution restrains the lay jury to the

limited and special role of determining controverted facts

to the same extent that the Judge is prevented from in-

vading the province of the jury. The right to have a trial

by jury includes the right to have a jury properly charged

as to the law governing the case, and a denial of the one

would be as grievous as the denial of the other. Peti-

29

tioner submits that he has been prejudiced by grievous

error.

CONCLUSION.

Petitioner respectfully submits that the questions

presented upon this petition are of great importance, not

only to himself, but to every citizen of the United States.

It is a strange quirk of fate which brings him to the Bar of

this Court to complain that he has been denied rights

secured to him by the United States while he stands con-

victed of a conspiracy to deprive another of such rights.

The question with him is, whether or not the sovereign

will do to him, with impunity, that which he is charged

with conspiring to do to another, for which conspiracy

he stands condemned to the severe penalty which the law

exacts.

Respectfully submitted,

D. B. HoLMgEs,

Ben F. CAMERON,

LESTER E. WILLS,

Meridian, Mississippi,

Attorneys for Petitioner.