Petition for Writ of Certiorari — Neal v. United States

bg ‘ FILS

NOY 19 1940

SUPREME COURT OF THE UN{BHMDLESTATBS! (0) Ley

OCTOBER TERM, 1940

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No. 582

Hah

WILLIAM SQUIRE NEAL,

Petitioner,

vs.

THE UNITED STATES OF AMERICA.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE EIGHTH CIRCUIT AND MOTION TO

DEFER CONSIDERATION THEREOF.

Epwarp J. CaLLaHAN,

JosepH A. Kozak,

Frank J. Kozak,

Minneapolis, Minn.,

Counsel for Petitioner.

Wuuum J. Hueues, Jr.,

Nicuoias J. CHIASCIONE,

Bowen Building,

Washington, D. C.,

Georce R. Surri,

Minneapolis, Minn.

Of Counsel.

Gu Sec as GA

ens Cee

INDEX.

Sussecr Inpex.

Petition for writ of certiorari.....................

OE Se

GUI sh cee es eS

Summary statement of the matter involved.....

Geoutuies presented. oo. ie bes.

MR es Ss ee ee ae et) ood

RE 5 tre Pa ee cae a ee

Appendix—Opinion of the United States Cir-

cuit Court of Appeals for the Eighth Circuit of

BOT RSE oe a i eee

Motion to defer consideration of the present peti-

NO ae oa is gra gta ay a Re Ba

TaBLeE oF Cases CirTep.

Alice State Bank v. Houston Pasturage Co., 274 U. 8.

+ ATES eRe em ay US «PUES hr Cn a Le Ca

Ballew v. United States, 160 U.S.187..............

Baltimore & C. Line v. Redman, 295 U.S. 654.......

Berry v. United States, 111 F. (2d) 615............

Cornero v. United States, 48 F. (2d) 69............

Duncan v. Montgomery Ward Co., 108 F. (2d) 848 ..

Eastern Livestock Assn. v. Dickenson, 105 F. (2d)

ROME ek Na NRE etn tr ete hr ahs

Farrar v. Wheeler, 145 Fed. 482 ..................

Gardes v. United States, 87 Fed. 172 ..............

Haynes v. United States, 101 Fed. 817.............

Kepner v. United States, 195 U.S. 100.............

Leader v. Apex Hosiery Co., 108 F. (2d) 71.........

Massachusetts Protective Assn. v. Mouber, 110 F.

RRR SS eSB ir hart see San ep sanasar eget Se

Millers Mutual Fire Insurance Assn. v. Warroad

eee Bem Oe e190) Tale Eee.

Netlson, Ba parte, 1381 U. 8. 176...............-.-.

—981

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st je 5

COURNEEES

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A i at ak a

AWAAAAON

on for) or oe oie oe oi op!

ii INDEX

Palko v. Connecticut, 302 U.S. 319.................

Patton v. United States, 281 U.S. 276..............

Slocum v. New York Life Insurance Co., 228 U. S.

ies oes 5 ae bcd dees eh 6 hd Ee 3,

Snow, Ex parte, 120 U.S. 274.....................

Thompscn v. Utah, 170 U. S. 343..................

Trono v. United States, 199 U. 8. 521..............

Whitworth v. United States, 114 Fed. 302..........

age

Oppenheimer v. United States, 242 U.S. 85......... 7

8

7

Ooh or

Statutes Cirep.

Act of August 24, 1937 (12 U. S. C. A., See. 588(b)),

SE TE a oe ey kaw 2

Judicial Code, Section 240(a)..................... 2

SS cos ee ol yea ok oee aes 5, 7,8

Oruer AuTHorities CITED.

Os a ea rr ee ae 5

Rules of Civil Procedure, Rule 50................. 5,6

_ till

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1940

No. 582

WILLIAM SQUIRE NEAL,

Vs.

THE UNITED STATES OF AMERICA.

Petitioner,

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE EIGHTH CIRCUIT.

Petitioner respectfully prays for the issuance of a writ

of certiorari to review a judgment of the United States

Circuit Court of Appeals for the Eighth Circuit.

Opinions Below.

The opinion below in the first appeal is reported at 102

F, (2d) 643, and is reprinted as an appendix to the present

Petition (P. 11). The opinion below of which review is

asked is unreported but found in the record at page 586.

Jurisdiction.

The judgment below was entered October 15, 1940 (R.

590). A motion for leave to file and a Petition for Rehear-

la

| a

ing subsequent to the expiration of the fifteen days allowed

for such petitions by Rule 18 of the Rules of the Eighth

Cireuit was filed November 19, 1940. Even though such

petition should be denied the present petition is still timely.

The jurisdiction of this Court is invoked under Section

240(a) of the Judicial Code as amended.

Summary Statement of the Matter Involved. .

The petitioner was tried twice for the offense of being

accessory after the fact in respect of the theft by his brother

of certain money from a national bank, a crime only made

an offense by the Act of August 24, 1937 (12 U. S. C. A,

See. 588(b), 50 Stat. Chap. 747, p. 749). At the first trial

he made a motion for a directed verdict on the ground that

there was no evidence to show that the currency found in

his possession and supposed to have been a part of the

fruits or proceeds of the theft was stolen subsequent to the

time this form of theft was made a crime by the statute,

i.e., August 24, 1937. Such a showing was essential, indeed

jurisdictional, inasmuch as lacking it the prosecution would

have been ex post facto under Thompson v. Utah, 170 U. 8.

343.

The Circuit Court of Appeals for the Eighth Circuit on

the first appeal held squarely that there was no evidence

showing that the money found in petitioner’s possession

was ‘‘part of the fruits or proceeds of the offense’’ of the

principal, that is, that it was money stolen by the principal

after rather than before August 24, 1937. (102 F. (2d)

643, 648, App. p. 18.) The court said that there was no

relevant evidence to support a verdict of guilty and that

the petitioner’s motion for a directed verdict should have

been granted. The court said this in so many words (p.

649, App. p. 21).

In spite of this when the court reversed, instead of send-

ing back the case with instructions to the Trial Court to

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3

dismiss the prosecution and order the petitioner discharged

(as in Cornero v. U. S., 48 F. (2d) 69, C. C. A. 9th), the court

sent it back with instruction to grant a new trial. At the

second trial the evidence was likewise meager, but sufficient

proof was eked out to show that Sixty Dollars ($60.00) of

the Five Thousand Nine Hundred Three Dollars ($5,903.00)

found in petitioner’s possession was only issued as cur-

rency subsequent to August 24, 1937, the vital date. This,

according to the Trial Court, with certain other circum-

stances was sufficient evidence upon which the case could

have been submitted to the jury, and the jury, having ac-

quitted the petitioner of misprision under Count Two

(which is not here involved), convicted him on Count One

of being accessory after the fact. A second appeal based

upon the insufficiency of the evidence, (see motion for a

directed verdict, R. 449, and in arrest of judgment, R. 20)

having been made and denied, the court below affirmed on

the ground that there was sufficient evidence to go to the

jury, the court being compelled subsequent to verdict to

scrutinize it from the viewpoint most favorable to the

Government (R. 586).

Present counsel were only retained November 11, 1940,

and being aware of the decision of the Cireuit Court of

Appeals for the Eighth Cireuit in Duncan v. Montgomery

Ward Co., 108 F. (2d) 848, cert. granted by this Court

April 8, 1940, and now pending, and likewise of the deci-

sion of the Cireuit Court of Appeals in Conway v. O’Brien,

111 F. (2d) 611, cert. granted 1940, now pending (see also

Berry v. U. S., 111 F. (2d) 615, cert. granted, now pending)

and likewise having their doubts as to whether the doctrine

of Slocum v. New York Life Insurance Co., 228 U. S. 364,

either still exists, or if it still exists is applicable to a

criminal case, filed below a petition for rehearing raising

the question of the right of the Circuit Court of Appeals on

the first appeal to send back the case for a new trial instead

IEMA RELL LPI LILO ERLE EL LALA PLETE K.

FN BRO LEE HORI RE ER ENA BRENT PG IS ROA NGTIE PEPE BPAY ce ET: PAIN Tig RESIN DERI C) SAMURE RIT Ir AA Oa a eT

4

of for a dismissal and discharge. Or, from another aspect,

counsel argued that either by reason of the doctrine of

former jeopardy or res judicata the petitioner was entitled

to and is now entitled to a dismissal, the entire question be-

ing apparent on the face of the record and constituting a

form of plain error unassigned. It was pointed out to the

court below that the cases holding that former jeopardy

must be pleaded and cannot be raised de novo in an appel-

late Court were cases of the usual sort, wherein some ques-

tion of fact might be involved, which is not the present case

wherein the question is one solely of law appearing on the

face of the record. Hence, it was argued that the court be-

low could validly notice the error, if convinced that it was

an error, and could grant the rehearing. Inasmuch as this

Court in Lx Parte Neilson, 131 U. 8S. 176, and Ex Parte

Snow, 120 U. S. 274, and recognized that the defense of

double jeopardy was truly jurisdictional in character and

could be raised by habeas corpus, there is obviously no

reason why it should be specially asserted at the trial if it

appears otherwise in the record as a pure question of law.

The Government can meet the argument as well now as then.

As the petition for rehearing below was only filed Novem-

ber 19, 1940, the date the present petition for a writ of cer-

tiorari is being filed, we respectfully ask this Court to defer

consideration of the present petition until the court below

has ruled upon the case.

Questions Presented.

1. Whether the petitioner was not entitled at the second

trial to the dismissal of the case and to discharge from

custody on the ground that the Circuit Court of Appeals

in reversing should not have sent back the case for a new

trial, but should have ordered a judgment for petitioner.

gaa {SANE EERE EOL EARE NYE REI IRAP OLIN? EE AEN CE BNR AY RSET SEAS 2G MEER AEN ESATO EEA IR IEC

:

Petitioner’s theory is that either because of the consti-

tutional protection against double jeopardy, the doctrine of

res judicata, or the requirement that the Appellate Court

should dispose of the case as right and justice may require

(28 U.S. C. A. See. 876) he was entitled to a dismissal. The

Appellate Court’s decision was a constructive acquittal.

2. Where there is an insufficiency of evidence (not a mere

error in admission or exclusion of evidence or other error

of law) and a directed verdict should have been entered for

defendant, is the Appellate Court under the doctrine of

Slocum v. New York Life Insurance Co., 228 U. S. 364,

compelled to send the case back for a new trial, or is it not

required in a criminal case to enter final judgment? We

believe that the doctrine of Slocum v. New York Life Insur-

ance Co., supra, is inapplicable to a criminal case, but if

hitherto applicable we ask that the doctrine as applied to a

criminal case like the present be specifically overruled.

3. As a safeguard under Alice State Bank v. Houston

Pasturage Co., 274 U.S. 240, in the event this Court grants

certiorari, we feel it only fair to argue that the facts are

entirely insufficient to permit the case to have gone to the

jury, there being no personal aid given the felon (4 BI.

Com. 37) and the facts showing at most the receipt of stolen

property.

ARR et dh ee

Argument.

It may be seriously questioned whether the doctrine of

Slocum v. New York Life Insurance Co., 228 U. 8. 364, is

in line with current legal thought. It is significant that

Rule 50 of the Rules of Civil Practise avoids the doctrine by

enacting an automatic reservation of the power in the Trial

Court to enter the right judgment no matter what the ver-

dict of the jury. As a result of this the Appellate Court

has power to order the Trial Court to enter the judgment

Beericee eter ce

NLR I PREP LSI NPA AEE IE ODE AES MEDI AITO BIH DOS ¥ P ae (ae aye nae ana! em _ . a

6

that should have been entered, whether for plaintiff or

defendant.

Duncan v. Montgomery Ward & Co., 108 F. (2d) 848

(C. C. A. 8th, Jan. 23, 1940, cert. granted April 8,

1940, U.S. S. Ct., undecided) ;

Conway v. O’Brien, C. C. A. 2nd, 111 F. (2d) 611, cert.

granted 1940, now pending;

Berry v. U. S., C. C. A. 2nd, 111 F. (2d) 615, cert.

granted 1940 now pending;

Massachusetts Protective Assn. v. Mouber, C. C. A. 8th,

110 F. (2d) 203, 207;

Eastern Livestock Assn. v. Dickenson, 107 F. (2) 116,

1920;

Baltimore & C. Line v. Redman, 295 U.S. 654;

Leader v. Apex Hosiery Co., 108 F. (2d) 71, 81;

Millers Mutual Fire Insurance Assn. v. Warroad Potato

Assn., C. C. A. 8th, 94 F. (2d) 741, 743.

Inasmuch as the new rules cannot change substantive

rights, it would seem to follow that unless Rule 50 of the

Rules of Civil Practise should be held invalid, the change

is merely procedural and probably results from the aban-

donment of the rigid doctrine of the majority opinion in the

Slocum case, and the adoption in its stead of what seems

to us the convincing argument in the dissenting opinion of

Mr. Chief Justice Hughes in that case, concurred in by

Justice Holmes and several other Justices.

The dissenting opinion seems to us absolutely conclusive

in a criminal case, disavowing as it does the argument in

the majority opinion that a new trial should be had to give

the plaintiff (here the Government) the opportunity to re-

pair by new evidence omissions and defects of proof at the

first trial. Certainly no such doctrine ought to exist in a

criminal case, public policy being entirely the other way

and firmly dictating that the Government should be pre-

pared when it first goes to trial, and that the defendant should

not be worn out by a succession of trials collaborated in by

the Appellate Court to the extent of giving helpful hints

to the Government.

The further argument in the majority opinion in the

Slocum case that a new trial was necessary because of the

right of the parties to a jury trial under the Seventh

Amendment is obviously inapplicable to a criminal case,

where the right to a jury trial is the right of the defendant

and not of the Government, and so may be waived or dis-

pensed with im a proper case (Patton v. U. S., 281 U.S. 276).

Obviously a defendant is losing no constitutional right, as

the plaintiff theoretically was losing it in the Slocum case,

when in a criminal case the Appellate Court orders a final

judgment in his favor. On the other hand, he is losing a

substantial right when the case on reversal is sent back for

a new trial, i.e., his right to be protected against double

jeopardy or his right to the doctrine of res judicata (Oppen-

heimer v. U. S., 242 U.S. 85).

Lastly, as to the suggestion in the majority opinion in the

Slocum case that apart from constitutional limitations

there was no way at common law upon reversal of a case

at law to do other than to award a new trial, this suggestion

seems not only repudiated in the dissenting opinion but like- y

wise repudiated by this Court in promulgating Rule 50 of

the New Rules of Civil Practice. It can hardly be supposed

that this Court would have interpreted the empowering

statute which led to the New Rules to hold that it conferred

authority to dispense with a jury trial where such a right

existed. Hence, aside from the majority opinion in the

Slocum case, this Court must have deemd the right of the

Appellate Court to enter final judgment as already existing,

no doubt under the appellate statute giving this Court and

the Cireuit Court of Appeal power on appeal to dispose of

the case as law and justice might require (28 U.S. C. A.,

2a

OE FERN SF

aE Pw, nt ee SC Re PON Te eee oe - eee . POT tee ee ee

a

8

Sec. 876, held applicable to criminal cases in Ballew v. U. S.,

160 U. S. 187, and Farrar v. Wheeler, 145 Fed. 482; see also

Haynes v. U. S., 101 Fed. 817, 818; Gardes v. U. S., 87 Fed.

172, and Whitworth v. U. S., 114 Fed. 302, 305).

We feel therefore that no statute (other than 28 U.S.C. A.

876 relative to appellate power) was necessary to give the

Court below power to enter judgment for the defendant

when it reversed. This Court recognized the power in Ballew

v. U. 8., 160 U. S. 188 and the Circuit Court of Appeals for

the Ninth Circuit did the same in Cornero v. U. S., 48 F. (2)

69. (See also cases cited at end of last paragraph.) The

propriety and necessity of such a judgment seems obvious.

Had the Trial Court ruled as the Appellate Court said it

should have on defendant’s motion for a directed verdict,

the defendant would have been released on the spot. It

seems, therefore, that an Appellate Court should inherently

have the power to place him in the position he should have

enjoyed before but for the Trial Court’s error. Only in

such a way can he be said to have obtained the full benefit

of his appeal. Conversely, if the Appellate Court orders a

new trial for the purpose of allowing the Government to

piece out its deficiencies in proof by new evidence to be

obtained under the guidance of the Appellate Court’s

opinion, it may well be questioned whether, though the

Government has no power of appeal in a criminal case

(Cf. Palko v. Conn., 302 U. S. 319), it has not reaped the

benefit of an appeal which has been predominantly in the

Government’s favor by allowing it to make valid at a second

trial what was invalid at the first.

It is felt, therefore, that every argument of sound public

policy, and indeed of fundamental concepts of fairness,

points to the rule herein contended for. It is not believed

that there is any jurisdictional objection. Nor is it felt

that there is any merit in the technical objection that the

defense of former jeopardy or res judicata should have been

9

raised at the second trial, otherwise they are waived.

Where the jurisdictional error complained of (and this

Court has held the error jurisdictional in Ex Parte Neilson,

131 U. S. 176 and the other cases already cited) appears on

the face of the record, it would seem heartless to contend

that the defendant cannot raise the point at this time.

There is no alleged ‘‘waiver’’ of the constitutional defense

that can be spelled out. The defendant has not waived it.

He is asserting it here and in the Court below by his peti-

tion for rehearing. If upon that petition or this petition

the Court can decide the point we see no argument except

one of routineer technicality in claiming that he should have

raised the point further back.

The distinction is emphasized once more between a case

wherein as here a motion for a directed verdict should have

been granted because of insufficient evidence and one

wherein the error is in the admission or exclusion of evi-

dence, the instructions of the judgment, misconduct of

counsel, ete. (Cf. Kepner v. U. S., 195 U. 8. 100; Trono v.

U. S., 199 U. S. 521.) In cases of the latter character, it

may be said that there is no jeopardy because no trial at

all, in the legal sense, resulted. If, therefore, the defend-

ant undertakes to have the Appellate Court so hold he

trades whatever benefit he got out of the trial for the right

to have the judgment set aside and a trial de novo awarded.

In such a case the human error on the part of the court or

government counsel in failing rightly to try the case must

be excused on superior grounds of public policy. Where,

however, the government having investigated a defendant,

having presented evidence to a grand jury and secured an

indictment, solemnly announces that it is ready and puts

the defendant in jeopardy of life or limb before his peers,

an equal public policy should dictate that the government

should have but one opportunity, and where no case has

been made out against the defendant he should rightly be

LLAMAS ELIE SIRI

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discharged. The Appellate Court should so order on the

basis of a constructive acquittal.

Reasons for the Allowance of the Writ.

We feel the foregoing shows an important question of

constitutional and criminal law which has not been but

ought to be settled by this Court.

Conclusion.

It is respectfully submitted that the petition herein should

be granted and the judgment below reversed with instruc-

tions to the Trial Court to dismiss the prosecution and dis-

charge the defendant.

Respectfully submitted,

Epwarp J. CALLAHAN,

JosepH A. Kozuax,

Frank J. Kozuak,

Minneapolis, Minnesota,

Attorneys for Petitioner.

Wuuum J. Hueues, Jr.,

Nicuo.uas J. CHIASCIONE,

Bowen Building,

Washington, D. C.,

Gerorce R. Smita,

Minneapolis, Minn.,

Of Counsel.