Petition for Writ of Certiorari — Mookini v. United States

Office ~Supreme Court, U. §

. FILED

Csr AS Ces SP sh oR Rhee ae RT rere on

* > Me <--Sraeerk S93 Prenat. Wop Ne Sete ets of 3

2 Pa a CER es ees: Sit ait y SRR Se Mea SS a

= . rs

ba ;

In ihe Supreme Court of the

‘United States |

- « - OcroBER TERM, 1937

ae

Rosert K. Mooxini and Lee Sav Cxona, |

Petitioners, |}

V8. .

Unirep States or AMERICA,

Respondent.

7

=

Petition for Writ of Certiorari to the United States

_ Cireuit Court of Appeals -for the Ninth Circuit

and Brief in Support Thereof.

. | O. P. Soaks,

’ 1-2 Union Trust Bldg.,

Honolulu, Hawaii,

Counsel. for Petitioners.

uy

: ; . : Mi

PARKER PRINTING COMPANY, 5458 SANSOME STREET, SAN FRANCISCO ) Pics

Subject Index

Petition for Writ of Cortiorari iscelatcesecsetedenitcithineaatunaiiaeaaneinaie oc

Summary Statement of Matter Involved... es

Reasons Relied on for Allowance of. Writ...

Brief in Support of Petition for -Writ of Certiorari

* .,-Opinions of Courts Below... a P

Jurisdiction — = |

Statement of the. Case...

y\. | Eee is

>

\ Summary of Argument...

\. Point 1 ........

3 ‘Point 2 *

1 SP ioc ak

Point 4

Conclusion of Argument...

2 ¥ »

ee ne ne

as - eye ee .

a a ee a

~_—y

Table of Authorities Cited

Pages

Arkansas v. Kansas & T. Coal Co., 183 U. . 185; 46 L. Ed. :

144, 147 ES ee ee RN. ML Rc . 18

Bridgeman v. U. 8. 140 Fed. 577 ; 2 C. C. A. | eee eee 15

-Brown v. Piper, 91 U. 8, 2 L. Fg. 200. ieee 18

A Te petite 19

Fillipon v. Albion Vein State Co., 250 U. S. 76.2.0. 19

Little v. U. S., 73 ER ERS Sine me ee eee sites - 20

Mrs. Ah Fook'Chang et al. v. U. S., 0 F.(2d)*... (C. GC.

A. 9, decided July 26, 937... BASE aia asco 19.

Outlaw v..U. S., 81 F.(2d) 805 iaismeisstinashionions 19

Peppers v. United States, 32 F.(2d) 346......... . 49

- Philadelphia & R. Ry. Co. v. Skerman, 247 Fed. ERE nres 19

Ponzi v. Fessenden, 258 U. S. 254, 260 19

’ Sandusky Cement Co. v. A. R. Hamilton & Co., 287 Fed. 609 19

Shields v. U. S., 273 U. S. 583, 588.......: 7 acts * 19

U. S. v. Christopherson. et al., 261 Fed. 226... 13

U. S..v. Franklin, 174 Fed. 161 ee

U. S.-v. Greene, 115-Fed848...cccsnaccceee! } 15

U. S. v. Reichert (C. C.) 32 Fed. 142... me i

_ U.S. v. Stubbs, 6 Alaska 736 - 16

U.S. v. Tingey, 5 Pet. 115; 8 L. Ed. 66... eee

U. S. v. Wallace, 40 Fed. 144... aie a 15

‘TABLE OF STATUTES CITED — ;

Criminal Code, see. 35..cgeuene 2

Judicial Code, sec. 240 . : ) , 6

31 Stat. at L. 141, c. 339 mem 13°

47 Stat. 904 : os | Gee

48 Stat. 399 (23 U.S. C. A., sec. . 71288) ee a ae

18 U.S. C. A., sec..80 2,6 .

8 U. 8. C. A., sec. 641 - , 2

8 U.S. C. A., ehapter 5... : 2 3

48 U. S: C. A., secs. 641 and 642 10

48 U.S. C. A, sec. 643 13

U. §,gCode (sec. 35, €: C.) 6

In the Supreme Court of the

United States ~ -

OCTOBER Tap, 1937

SS EEEEeneeiieeeeeeeel

eomeal kK. MooxInt and LEE Sau CHr0Na, I

= Pititionsrs,

—

VS.

UNITED STATES or AMERICA, 7 o

; _ Respondent.

Petition for Writ of Certiorari to the United States

Circuit Court of Appeals for the Ninth Circuit. .

cm

' To the iH onorable Charles Evans H. hes, Chief Jus-

_ -.tice of the United States, -and to the Associate

¢. | Dealions af the United States:

Your petitioners respectfully, show:

SUMMARY STATEMENT OF THE MATTER INVOLVED.

The United States Circuit Court of Appeals for the

Ninth Circuit dismissed petitioner’s appeal, holding

@ .

OOO ee oe es ee ae ee

‘ © m

2 2

that Rules- of Practise and Procedure in ‘all proceed-

ings after plea of guilty, vérdict of guilt by a jury or -

finding of guilt by the trial court where ‘a jury is

waived, in criminal cases in the District Courts of the

United States and in the Supreme Court of the Dis-

trict of Columbia and in all subsequent proceedings

in such cases in the United States Circuit Court of |

Appeals, in the Court, of Appeals ofthe District of

Columbia, and-in the Supreme Court of ‘the United

- States, promulgated by this Court May 7, 1934, and,

specifically Rule III. thereof, are applicable to the

distriet court in the Territory of Hawaii and that

therefore, the appeal was not taken in time. The ap-

peal being thus summarily dismissed, the case was not

reviewed. ©... ame

"The pertinent facts of the case are that petitioners

- were jointly indicted on two counts of violating sec-

tion 35 of the Criminal Code (18 U. S.C. A., sec. 80)

and were tried in the court provision for which is

_made in the Organic Act of the Territory of a :

(28 U. 8. C. A. see. 641) therein denominated “

district court,’”’ which court is not to be confused with

District Courts of the United States, the latter being

provided for by Chapter 2, Title 28 of the United

States Code, and the judicial districts in which Dis-

trict Courts of the United States are established being

set out in Chapter : 5, Title 28, of the United States

Code.

_ A jury found petitioner Mookini guilty on one count

of the indictment and not guilty, on the other, and the

Petitioner Lee Sau nesting guilty on both h counts:

'

\

|

= 7 -

2 om ‘ °

ah ugh 3 se weigh RS ge a ree te en an

oo

3 >. 2

- Admittedly, if the rules of this Court vais

May 7, 1934 are limited to the District Courts of the

United - States and the other Courts therein enu-

merated and do not extend to the United States Court .

in the ‘Territory of Hawaii, the appeal should not

have been dismissed.

<< __—_——_

iI, .

—. RELIED ON FOR THE “ALLOWANCE OF THE WRIT.

In this case, the United States Circuit Court of Ap-

peals for the Ninth Circuit has decided an important

question of federal law, which has not been, but should

be, settled ey the Supreme Court of the United States’ 89s

Wairerone, your petitioners pray that a writ of. .

certiorari issue under the seal of this Court, directed ©

. to the United States Circuit Court-of Appeals for =. . |

the Ninth Circuit, commanding said Court to certify ai.

and send to this Court a full and complete transcript s

. ‘of the record and of the proceedings of the said Court. ;

_had.in the ease numbered and entitled on its docket }

No. 8183, Robert K. Mookini and Lee Sau Chong, ap- | + Ae

pellaiits, v. United’ States of Ameriga, appellee, to \ os /

the end that the cause may be reviewed and. deter-" \

mined by this Court and that the judgment herein of vf

_ said Court be reversed by this Gourt, and for such. 4

other and further relief as to this Court may seem. |

proper. |

5 Dated at eailidin: Hawaii, inde 10, 1937. -©

O. P. Soares, |

Counsel. for Petitioners.

a7 + "

am SECIS apes

Inthe Supreme Court of the

| United States

*

Ocroser Term, 1937. : °

@

.

Ronnae K. Mooxini and Lee Sau C

SL

ae . +

tam

="

Unitep States OF AMERICA,

4

Respendent. | '

Brief in Support of Petition for

Writ of Certiorari.

1. aa °

OPINIONS OF COURTS BELOW.

‘ - The opinjon of the United States: Circuit Court of

- Appeals far.the Ninth Circuit at the moment of writ- ..'

ing this Brief has not been reported but is to be found f

“Oh page 1016 of the record. .; 4

_ The case in the trial court was unreported. | i?

° 6

| Il.

it JURISDICTION. -

It is believed and urged that the jurisdictiorf of this

Court is sustained, by J udicial Code, section 240 as .

’ amended (28 U. 8. C. A., see. 347).

—_————_ ?

IIl.

STATEMENT OF THE CASE. |

Robert K. Mookini and Lee Sau Chong, appellants

herein, together with William E. Miles and John E.

Cunningham were jointly indicted by a grand jury on

March 19, 1935, for violations of Sectien 80, Title 18,

United States Code (section 35, C. C.), the indict-

ment being in two counts.

Count I, charges all four defendants with making —

and causing to be presented to the camp hrector of

the Civilian Conservation Corps, Schofield Camp,

Hawaii, a fraudglent claim: and voucher, on which |

appeared certain items of shell fish, fruit, and vege-

tables which were not délivered ‘but for which pay-

ment was claimed. The evidence shows, however, that’

payment was never in fact made.

Count I} relates to a date and to items differént

from those set out in Count I (R. pp. 5 » 11).

endant Mookiui filed a demurrer on twenty-six

grounds (R. p. 12) and defendant Lee Sau Chong filed

a demurrer -on nineteen grounds (R. p-20).

antl nal Ceasers Qe Seer: Be, Fee foe ~ 2 rece pte. .

> bine <>** ee wa - --

Both demurrers were overruled. Defendant Hee

Sau Chong filed a motion for severance (R. p. 35)

which motion was overruled.

The case proceeded to trial. In due course Mookini_.

' was found guilty on the first count and not- ‘guilty on

the second count and Lee Sau Chong was found guilty

on both counts.

Thereafter, an appéal was taken to the United

States Circuit Court of Appeals for the Ninth Cir- |

cuit, and after briefs filed and oral argument, that

court’ dismissed the appeal on the ground that the

same had not been’ taken in accordance’ with certain.

_ promylgated by this Court on May 4, 1934.

SPECIFICATION OF ERRORS.

1. The said Cireuit Court of Appeals erred in

holding that ‘® R ef Practise and Procedure

* after en fy er of guilt by a py, or

finding of guilt by the tria] court where a jury is.

waived, in criminal cases‘in the District Qetirts of

the: United S ‘and in the Supreme Court of ‘the -

District of Oolumbia, and ini all subsequent proceed-

4 ings in such cases in the United.States Circuit Court ©

of Appeals, in the Court of Appeals of the District of

‘Columbia, and in the Supteme Court of the United -

States promulated by this Court May 7, 1934, and

specificajly Rule IIE, of those rules are applicable to

- the: district court in the Territory of Hawaii. (R. p.

me

1016).

2. The trial court erred in overruling the des.

rers to. the indictment, particularly grounds 4, 12,

14 and 17. thereof: (R. pp. 143, 144, and 145) whi

read as follows: — es

“5. That it does not appear from the allega-. :

tions of said count ‘that the. Camp | “Director to-

whom it is all€ged that said claim was presented

for approval and payment was authorizéd by law |

to make payment or to approve the any - *

payment (R. p. 143). . :

12. That said count: of said indictment is

_\ indefinite and uncertain in that it fails to show

how or in what manner said bill was fraudulent

_ or fictitious and it fails to appear whether it is

charged that the items therein set forth were so

_ set-forth as inaccurate or incorrect records of

charges which might* or could: properly be made,

or as records -of charges | which could not be made

at’ all, it failing to appear therefrom whether or

not any other goods or merchandise: of a like

value was delivered and billed as in said ihdict-

ment set forth. (R. p. 144).

‘13. That said count of said indictment while ”

charging that said goods were not delivered to

‘the Civilian Conservation Camp at all, fails wholly

‘and completely to show that any fraud was there-

by perpetrated or that said bill was not a.proper

bill for presentment in that it fails to appear.

from said count that said ‘goods were not de-

~ livered to-some Other proper and -suitable. place

. for deljvery. (R. p.: 145:)

a er RAE RC SEES I Ne eabrcene Aen

ee

s ‘ 9g

‘ 14, That it. does mot appear from the allege-

tions of said count that this defendant was bound

to deliver said goods to the Civilian Conservation ~

~ Canip in order to become entitled 0 receive pay--

ment ‘therefor, it affirmatively appearing that de-

livery at any suitable place to any person author-

ized to accept delivery on behalf of the United’

_ States Government would be proper delivery, said

count failing to indicate that such et merry

"was not made,

‘-°15. That the allegations of. said sik. fail to

state facts showing the commission of a crime by

. this defendant.

“16. That the allegations of said count fail to

show violation of the provisions of Section 80,

Title 18, United States Code. (Section 30, CG. C.)

“17. That said count of said ikdictment fails

completely to state facts from ‘which this defend-

ant can possibly .know the exact nature. of the

crime charged against him or can possibly pre- ©

’. pare for trial in defense thereof.”’.

* | .

3. The trial court erred in overruling the ‘motion

of defendant Lee- Sau Chong that his cause as a de-

fendant in said action be severed for the purpose of

trial from the. causes of theeother defendants (R. p.

San). . |

4. The trial court heise in giving intormatigh to,

and communicating with, the jury as to. facts or evi- ae |

‘ dence ‘relating to said eause‘while said jury was de- - (gk

__ liberating on its verdict in said cause, such informa- a

* tion being given and communication had whilé the

defendants Robert K. Mookini and Lee Sau. Chong

°

10

were not personally present and in the absence of their

‘counsel and without notice te them and outside of the

eourt room.

es

faa e t

oa ¥, inf

PA

ARGUMENT. '

SUMMARY OF THE ARGUMENT.

Pornt 1. The Rules of Practise and Procedure

after conviction in critninal cases promulgated by this

Court are applicable.to District Courts of the United

States only and not to the district court established

in the Territory of Hawaii 5 sections 641 and 642 of

Title 48, U.S. C. A. .

There is a marked and clearly drawn distinction

between District Courts of the United States and tlie

district court established. in the Territory. of Hawaii

by Sections 641 and 642 of Title 48, U.S.C. A...

In. promulgating the aforesaid Rules of Practise “

and Procedure, this Court intended that they should*

not apply to the district court established in the Ter-

ritory of Hawaii by Sections 641 and 642 of Title 48,

U.S. C. A.

Point 2. The indictment upon which defendants

were forced to go to trial did not. set out all the ma-

terial facts and cireumstances embraced in the defini- -

tion of. the offense sought to be charged ; it ‘omitted

material language of tha statute hazy it supply the

lack with other language.

11

_Pornt 3. The trial court having granted the defend-

ant. Miles a separate trial should have severed the’

causes as against Mookini and Lee Sau’ Chong. By ,

refusing to do so, the court made it appear to the jury’

that Mookjni and Lee Sau Chong must have been

acting together.

Point 4. The communication with the siey by the

trial judge while the jury was deliberating on its ver-

dict consisted of a statement made by him based on

+ his recollection of the. evidence although there was

- documentary evidence on the subject; was not _War-

raiitted by the evidence; was in the absence of the de- —

fendants and their respective om and was not

in the court room. 7 :

POINT 1. |

_ It is clear from the language employed therein, that. -

the Rules of Practise and Procedure after conviction

in all proceedings after | plea of guilty, verdict of guilt

- hy.a jury or finding of guilt by the trial court*where

a jury is waived, promulgated by this court on May

7, 1934 are limited to criminal cases in: the District

Coyrts of the United States and in the Supreme Court

of the District of Columbia ‘and in all subsequent pro-

ceedings in such cases in the United States Circuit .

Courts of Appeals, in the Court of Appeals of the -~

District of Columbia, and in the ie icacs Court of

the Uni tates. ;

_¥ The Congress-of the United States by ‘the ‘Act of

February 24, 1933, C. 119, 47 Stat. 964 as amended by

ae

a | Soe TGR RRM RRR CET

ec berer:

the Act of March 8, 1934, C. 49, 48, Stat. 399 (23

U.S. ©. A, sec. 723a) gave this Court power to pre-

and of Puerto Rico, and in the United States Court

. them. to. the District Courts of the United States, the | |

— — United’ ‘States Circuit Courts of Appeals, the Court

~ Supreme Court of the United States; and has thus.

the United States Court for China.

) >

scribe rules of this nature in criminal cases in district

courts ef the: United States and of Alaska and of —

Hawaii and of Puerto Rico and of the Canal Zone

and of the Virgin Islands, as also in the Supreme

Courts of the District of Columbia and of Hawaii |

for China, and in all United States Courts of Appeals

and in the Court of Appeals of the District. of Colum-

bia, and in a Supreme Court ofthe United States.

-_In—promulgating these rules this Court limited

Supreme Court of the District_ of Columbia, the

of Appeals of the District. of Columbia, . and in the |

far promulgated no new rules for criminal caSes in

the district courts of Alaska, of. Hawaii, of Puerto

Rico, of Canal Zone, or of the Virgin Islands; the

Supreme Courts. of Hawaii‘and of Puerto Rico; and

The Territory, of Hawaii has never been marked -

off into judicial, districts or into one judicial district.

The Judicial Code of the United States provides no

district court for the Territory of Hawaii:

As originally created, the United ‘States court te

Hawaii, like the United States court for China had $5.

greater jurisdiction than District Courts of the |

United States. The court in which the trial of this. ;

case was had’ was brought into existence by the Act of

April 30, 1900, 31. Stats, at L.. 141, ¢. 339. The pro-

vision for jurisdiction of this court was made. in this

language: ‘‘Said court shall have, in addition to the

. ordinary jurisdiction of district courts of the United |

States, jurisdiction of all cases cognizable in a ciréuit

court of the United States and shall proceed therein

in the same manner as a circuit. court and said judge

* * * shall have and exercise in the Territory of Ha-

_waii all the powers conferred by the laws of the -

. United States upon the judges * * * of district and‘.

circuit courts-of the United States” (sec. 86). :

The court in- -which this case originated and was

” tried can hardly be said to be a District Court of the

' United States when, as is the case, only persons who.

are ‘“‘citizens of the Territory of ‘Hawaii and have

* resided therein for three years next preceding their

appointment’’ are. eligi le for appointment: to that

bench sailing 8. . Px sec. ho?

POINT 2.

In the ease of U. S. v. Christopherson et al., 261

Fed. 226, defendants’ were indicted on five counts .

' under the same statute as that’ under consideration.

_ on the appeal. The deferidants therein demurred to _

~ the indictment, ‘which read as follows: ms

; “That on or about the 31st day of erie:

1917, one .Louis ‘Christopherson and Charles ‘

Bauer, who were then arid at: all times herein-

after mentioned the president and secretary re-

spectively of the St. ee Coffee & Spice Mills,

7

Cs. @e >

ae vee me é .

P : ; ‘ 4

14

a corporation duly organized and existing under

the laws of the state of Missouri, with its’ chief

office and place of business in the city of St. Louis,

Missouri, and in the division and district ‘afore-

said, and within the jurisdiction of the court

_Bforesaid, did unlawfully, knowingly, wilfully, .

‘* and feloniously make and present, and cause to

be made and presented, for approval and pay-

ment to one Capt. A. R. Piptr-who was then and

there an officer in the military service of the

United States, a certain false claim and public

voucher upon and against, the Quartermaster De-

partment of the United States Army.”’

The Federal court, in sustaining the demurrer,

said:

‘*The second point of objection urged, by the

_ defendants against the indictment herein applies

to each of the five: counts contained in the indict- -

ment. The -objection is bottomed upon the fact

- that the indictment does not aver that the alleged

voucher was presented to any officer of the United

States clothed with authority to examire and ap-

prove such voucher.for payment, nor does either

of the fiye counts thereof allege anything touch-

ing such authority. It will be noted that the only"

charge made therein opposite to this point is that

the alleged false voucher was presented for ap-

proyal and payment to one Capt. A. R. Piper who

was .then ‘and there an officer in the ——

service of the United States.

“Tt will be observed that nothing «whatever is

averred in the indictment as to the authority of

Capt. Piper to approve and pay, or approve for

— + ~ Se bi a! tek iat ab A wy xed oe MS OS - A = hae 2 2 ee tye, 5

OT a IE RE I A he aS ROS ES, LE OR Pe SE ag ES sic ckatininasiane! “aoamaten Mtaaceiee eee

15

payment, the voucher in question; nor-does such

indictment set out the arm or branch of the serv-

ice to which Capt. Piper belonged, so that judicial

notice -might eke out this omission. While the

language of the statute merely makes it an offense

to present a false voucher to any civil, military,

or naval officer, yet obviously by this language is

meant that the officer to whom such voucher shall

be presented must be a civil, military, or naval

officer, cl6thed with power to approve and. pay

the same. Otherwise the mere presentation of a:

false voucher to any officer of the United States,

‘gmilitary, naval or civil, would be a crime, whether:

- such officer had authority to act in the premises *

- or not. Such condition is unthinkable. I am of

opinion that the ruled cases requiré that an apt

allegation of such authority ought ¥e be made in -

each of the five counts-of the indictment. Bridg-

man v. U. S., 140 Fed. 577, 72 C. C. A. 145; U. 8.

v. Reichert, (C. C) 32 Fed. 142; U. S. v. Franklin,

(C. C.) 174 Fed. 161; U. 8. v. Wallace, (D. C.) 40-

Fed. 14; U.S. v: Greene,(D. C.) 115 Fed. 343.

“While some of these cases were not prosecu- ‘

- tions under either section 35 or 37 of the Penal

Code, yet what is said in them obviously is oppo-

site to the condition presented in the instant case. -

I therefore hold that an apt allegation that the

‘officer, to whom the voucher in question was pre-

sented, was vested with authority to approve for .

payment, or to pay such voucher, was necessary,

and that lacking such allegation the indictment as.

to each of the five counts thereof, is in this behalf,

defective.”’ | ;

TPR ET AYE parr gE

al Oe ee oe a. * Se PST iy Pp sres FO a re rt ma aay re . * , p IE 2 td, e

re = . peat chee ee re SEES Pais tale hae. VA IS ILE BG SOLS oS a8 .

* 2 .

.

>

‘ : x ‘

. os 5

o

16 cas /

_gIn an earlier case (U.S. v. Reichert, supra) the

Federal court again sustained a demurrer to the indict-

‘ment under the identical statute for the ®imilar rea-

_ son that the indictment was fatally defgctive in not

alleging that the officer to wltom the false cffim was

presented ‘had authority to approve and allow such

claim. ;

The appellate court in sustaining the demurrer to

the indictment said on page 143:

“But I agree with. the circuit judge that the

| absence of any averment of authority in the sur-

-veyor general to. allow and approve the claim —

.which was presented to mae is, of \itself, a fatal |

defect.’’

In U0 s. y. Wallace, supra, the defendant. was im-

dicted under the identical statute. The indictment

charged that defendant did present for payment’ to

George I. Cunningham, he being an officer in the civil

service of the United States, that is, being United

States Marshall in and for the district of South Caro-

lina, a claim against the government of the United

States. The court sustained the demurrer to the in-

ictment. on the ground that it: was) not shown that. -

~ Cunningham had ie to approve and pay such

om. * =. epee

_ In the case of U.S. v; Stubbs, ( 6 Alaska 736, the de-

fendant was on trial for presenting a false’ ‘and fic-

titious claim to the United States. On motion for a

directed verdict, the indictment. was held insufficient

becausé of a total omission of any allegation or state-

°

a

: | 47

. ment which charged that this alleged false claim was a

:* claim against the government. of the United States.

It does not so much as appear from the indictment

that the “Camp Director’’ referred to therein was

"an officer of the United States or that he was clothed

“with power to approve and pay the claim and voucher ~

described or any claim or voucher.

_ The designation ‘‘direétor’’ is nowhere wagd in the

'_ statutes, exeentive orders, or depaffimental regulations

promulgated by authority of law to indicate “an of-

ficezx of the United States’’ attached to the Schofield

Camp of the Civilian Conservation Corps ‘clothed

with power to. approve and pay” the claim and

". voucher described in the indictment. -

The rule long ago enunciated by the Supreme Court,

of the United States in U.S. v. — 5 Pet. 115,

8 L. Ed. 66, is still. the law. |

“There is no statute of the United States ex-.-

pressly défining the duties of pursers in the navy.

What those duties are, except so fat as they are

incidentally discloged in public laws, cannot be

judicially known by this Court. If they are regu-

- lated by the usage and customs of. the Navy, or by

—" the officials orders of the Navy Department#they

- properly constitute matters ,of averment, and

- Showla ve spread wpon the pleadigg.’”’

And even were there such an officer as camp di- —

réetor “clothed with power to approve and im

‘claims and vouchers on behalf of the United State,

_the trial Court could not supply the deficiency i in, te

¥

OR Oe aS ee a ere Tee ae ee ee SE Tg Bed wk Fat 9 te

. 18

indictment by the application of the rule which per-

mits the taking of jitdicial notice of certain facts.

ea Sa Kansas & T. Coat Co., 183 U. 8. 185, |

46 1 144, it is said at page 147: ;

‘“‘Afid as to judicial knowledge, the prineipie

applies that the right of a court to act upon what

is in point of fact known to it must be subor-

dinate to those requirements of form and orderly

" communication which regulate the mode of ‘bring- ©

ing controversies into court;and of stating and .

conducting them.”* me pare

In Brown tv. Piper, 91 U. ‘8, 28 L. Ed. 200 at 202

‘the rule is stated thus:

‘ .

” ‘This power of: judicial notice is to be exer-"

cised by courts with caution. Care must be taken —

That thes requisite notoriety exists: Every rea-

sonable doubt upon the subject should be resolved

promptly in the negative.”’ :

It nowhere ‘ain ds statute, in exeeutive selene

‘ or in departmental regulation promulgated by auth-

ority of law, that a camp director is a “‘civil, military, :

or naval officer clothed with power to approve and pay

claims and vouchers,’’ hence it follows the deficiency

in the indictment cannot be supplied.

This deficiency is a matter of-gubstance and not of

' form affecting as it does the right of defendants not

be placed on- trial except after indictment clearly .

showing that they are charged with a violation of a -

-. statute in the words df the statute or their equivalent.

e

m

|

3

POINT 3. —

It is respectfully submitted that it was an abuse

. of discretion to sever the case as to Miles and Oun-

-ningham and requiring Mookini and Lee Sau Chong.

- to stand trial together, thus making it appear that.

these two defendants were acting jointly. Tn other »

* words, to ‘properly safeguard appellant?s right to a.

fair. trial, each of: the four defendants shquld-have

-* been tried ‘ separately or all four should have been

tried together. 3

POINT 4 9.

ao

Ponzi v. Fessenden, 258 U. 8. 254, 260; and Shields

#. United States, 273 U. S. 583, 588, are authority for

the proposition of law that appellants were entitled

to.be personally present at every stage of ‘the trial.

- Fillipon'v. Albion Vein Slate Co., 250 U. S. 76; .

Shields & United States, 273 U. S. 583; Philadelphia *

i Ry. Co. v. Skerman, (C. ©. A. 2) 47 Fed. 269;. |

Dodge v. United bite, yp C. A. 2) 298 Fed. 300;

Outlaw v. United States, (C. C. A. 5) si F.(2d) 805;

Sandusky Cement Co. v. A. -R. Hamilton & Co.,-(C. C.

A. 6) 287 Fed. 609; Peppers v. United States, (C. C.

~ &.-6) 37 F.(2d) 346; Little v. United States, (C. C. A.

10), 73 F.(2d) 861; are-authéfity for the propésition

: Of law that it is error for the court to instruct or com- —

municate with the jury in the absence of counsel and:

without notice té them. oo ety

Though the record may not disclose whether error

- committeddn the trial of a criminal is prejudicial

‘sor _is not prejudicial, error havin shown, it is

Ss wt

(Little v. United States, (C. C..A. 10) supra; Mrs. Ah-

20

me 5

presumed to be prejudieial and to require reversal }

Fook Chang et al v. United States,........F. (2d)... 9

(C. C. A. 9), decided July 26, 1937). a

—

CONULUSION.

-

For the reasops set out above, His respectfully subi

nnfitted that this’ case is one which justifies the granting g

of a Writ of Certiorari and thereafter en and

reversing the adverse decisions. “4

Dated at Honolulu, Hawaii, oe 10th vi of Au

gust, ‘1937, , . a

~. OF. iti, — .

_ Counsel for Petitioners. 4