Petition for a Writ of Certiorari — Monjar v. United States

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INDEX

PAGE

RIN BOF COPUIGPONS oa os kes cica sa sanccwaenssseaas 1

I. Summary Statement of the Matter Involved.... 1

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V. Reasons relied upon for the allowance of the writ 5

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TE 2. Serer rrerreeeer errr Tyr rere 14

Summary of the Argument... ..............-eeee eee 15

I. Under the Instructions as a whole the District

Court committed prejudicial error in giving the

following Instruction: “You are further in-

structed that the question of intent is one that

is hard to establish directly, because grown

persons do not always disclose the object they

have in view in any acts in which they may in-

dulge, and you have to gather the intent from

the character of the act, the circumstances sur-

rounding it, and from conduct of a like character

which may appear as tending to aid you in find-

ing and discovering it. But in connection with all

this, unless the testimony satisfies you of some-

thing else, you are warranted in holding a party

responsible for the natural and probable and

reasonable consequences of his act.” and the Cir-

cuit Court erred in not so holding.............. 15, 16

SMR LON ERED 3

:

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INDEX CONTINUED

PAGE

II. Under the Instructions as a whole the District

Court committed prejudicial error in giving the

following Instruction: “You are instructed that

the rule of law which throws around a defendant

the presumption of innocence and requires the

government to establish, beyond a reasonable

doubt, every material fact averred in the indict-

ment, is not intended to shield those who are

actually guilty from just punishment, but it is a

humane provision of the law which is intended

for the protection of the innocent and to guard

against the conviction of those unjustly accused

of crime.” and the Circuit Court erred in not

so holding ...........-:eeee cece cece eeeeees 15-16, 18

III. The District Court erred in overruling the motion

of the petitioner for a directed verdict as to

Count Two of the indictment, for the reason that

the evidence was wholly insufficient to show the

use of the mails as to said Count, and the Circuit

Court erred in not so holding. .......------- 16, 18-19

ATGUMENE . 2... oes cece cece eee e eee e se eeeneenens 16

AUTHORITIES CITED

CASES:

Agnew v. United States, 165 U. S. 36, 41 L. Ed. 624. .5-6, 18

Brady v. United States (C. C. A. 8), 24 Fed. (2d) 399. 6,19

Chaffee v. United States, 85 U. S. 516, 21 L. Ed. 908. . .5, 18

Coffin v. United States, 156 U. S. 482, 39 L. Ed. 481... .5, 18

Comila v. United States, 146 Fed. (Dd) STZ... 00.0005: 6, 18

Cummins v. United States, 232 Fed. Re as 5, 18

Davis v. United States (C. C. A. 3), 63 Fed. (2d) 545. . 6, 19

Estep v. United States (C. C. A. 10), 140 Fed. (2d) 40. 17

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sini

INDEX CONTINUED

PAGF.

Cases (Continued):

Freeman v. United States (C. C. A. 8), 20 Fed. (2d) 748 6, 19

Hibbard v. United States (C. C. A. 7), 172 Fed. 66... .5, 18

Laws v. United States, 66 Fed. (2d) 870.............. 6,17

Mackett v. United States (C. C. A. 7), 90 Fed. (2d) 462.6, 19

McCallum v. United States, 247 Fed. 27.............. 5,18

McKnight v. United States (C. C. A. 6), 115 Fed. 972. .5, 18

Rice v. United States (C. C. A. 10), 149 Fed. (2d) 601. 17

Rosenberg v. United States (C. C. A. 10), 120 Fed. :

"SERA aS OEE le Sag erie oh eee yn 6, 20 }

Shaddy v. United States (C. C. A. 8), 30 Fed. i

CHRD Ue a ARK 6 GN nO sve he FROR SOS eND CERRO ewes 5, 17

Underwood v. United States (C. C. A. 6), 267 Fed. 412. 6, 20

United States v. Baker (C. C. A. 2), 50 Fed. (2d) 122.. 6,19

Whealton v. United States (C. C. A. 3)), 113 Fed.

Real on ic Gag cabs eek act ence 6, 19

STATUTES:

Criminal Code, Sec. 215 (18 U.S. C. A., Sec. 338)..... 9

Judicial Code, Sec. 240 (a) as amended by the Act of

February 13, 1925, 43 Stat. 938, 28 U.S. CA,

Misti esc ec cis vabbee bas neewstns hes 4

——r LTT TOE

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In the

Supreme Court of the United States

(OcTOBER TERM, 1945)

C. R. Morritt, alias CARVEL R. Morrirt,

Petitioner,

VERSUS

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE TENTH CIRCUIT, AND SUPPORT-

ING BRIEF.

PETITION FOR CERTIORARI

To the Honorable, the Justices of the Supreme Court of

the United States:

The above-named petitioner respectfully shows:

SUMMARY STATEMENT OF THE

MATTER INVOLVED

On October 17, 1944, the petitioner was charged in

the United States District Court for the Western District

of Oklahoma, by indictment containing three counts, of

entering into a plan, scheme and device, on or about March

7, 1944, with an individual known as George Harris or

Ralph Howard, for the purpose of defrauding the Mudge

Oil Company, of Pittsburgh, Pennsylvania, out of the sum

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of $25,000.00 by the purported sale to it of worthless oil

and gas leases, and the use of the mails in furtherance

of such plan, scheme and device, under Criminal Code,

Section 215 (18 U. S. C. A., Section 338) (R. 1-8). On

October 24, 1944, petitioner filed a demurrer to each count

of said indictment, which demurrer was overruled on that

day, and thereupon said cause was set for trial on De-

cember 4, 1944 (R. 8-9).

On December 4, 1944, the trial of said cause was

begun, and at the conclusion of the evidence in chief of

the respondent the petitioner demurred thereto as to each

count of said indictment, which demurrer was overruled

(R. 9-10). On December 7, 1944, the trial of said cause

was concluded and thereupon the petitioner filed a motion

for a directed verdict as to each count of the indictment,

which motion was overruled, and on December 8, 1944,

shortly after midnight, the jury returned a verdict finding

the petitioner guilty on each count of the indictment

(R. 10-11).

On December 11, 1944, the petitioner filed a motion

for a new trial, which was overruled on March 1, 1945,

and thereupon the petitioner was sentenced for a term of

five years, consecutively, upon each count of the indict-

ment —a total of fifteen years, and committed to the United

States Marshal (R. 12-13).

On March 1, 1945, shortly after the entry of said

judgment and commitment, the petitioner filed and served

his notice of appeal under the Rules of Criminal Pro-

cedure (R. 13-15), and on March 2, 1945, filed and presented

eoO7OoOrnr~ er es Oma

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an application for bail pending appeal, which application

was denied (R. 15). In due course he made an application

to the United States Circuit Court of Appeals for bail

pending appeal, which was granted and his bond fixed

at $7,500.00, which he gave and was thereupon released

from the County Jail of Oklahoma County as a Federal

prisoner (R. 15-16).

In due course he perfected his appeal to the United

States Circuit Court of Appeals for the Tenth Circuit,

and that Court, on March 15, 1946, affirmed said judg-

ment and sentence as to Counts One and Two of said

indictment and reversed the same as to Count Three

thereof, by an order made and entered therein of that

date (R. 495-503).

Ii.

DECISIONS BELOW

The trial court dia not file an opinion. Its judgment

and sentence is dated March 1, 1945 (R. 12-13). The

opinion of the Circuit Court of Appeals was filed on March

15, 1946 (R. 495-502). It has not been officially reported.

The judgment upon said opinion is dated March 15, 1946

(R. 502-503). No petition for rehearing was filed. On

March 21, 1946, mandate was stayed (R. 503).

REMAP EET ONS

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CLEANLY SN HES eR

PPL A RE RR HUE TEEPE IRS BR OEE. Be

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II.

JURISDICTION

The jurisdiction of this Court is invoked under Section

240 (a) of the Judicial Code, as amended by the Act of

February 13, 1925, 43 Stat. 938, 28 U.S.C. A., Sec. 347 (a).

Rule 11 of the Rules of Criminal Procedure after Plea

of Guilty, Verdict or Finding of Guilt.

IV.

QUESTIONS PRESENTED

The following questions are presented:

(1) Under the Instructions as a whole did the trial

court commit prejudicial error in giving the following

Instruction:

“You are further instructed that the question of

intent is one that is hard to establish directly, be-

cause grown persons do not always disclose the object

they have in view in any acts in which they may

indulge, and you have to gather the intent from the

character of the act, the circumstances surrounding

it, and from conduct of a like character which may

appear as tending to aid you in finding and discover-

ing it. But in connection with all this, unless the

testimony satisfies you of something else, you are

warranted in holding a party responsible for the

natural and probable and reasonable consequences

of his act” (R. 315).

(2) Under the Instructions as a whole did the trial

court commit prejudicial error in giving the following

Instruction:

_———a OUI IO Po

ins

“You are instructed that the rule of law which

throws around a defendant the presumption of inno-

cence and requires the government to establish, be-

yond a reasonable doubt, every material fact averred

in the indictment, is not intended to shield those who

are actually guilty from just punishment, but it is a

humane provision of the law which is intended for

the protection of the innocent and to guard against

the conviction of those unjustly accused of crime”

(R. 313).

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(3) Did the trial court commit prejudicial error in

overruling the motion of the petitioner at the conclusion

of all of the evidence to direct the jury to return a verdict

of not guilty as to Count Two of the indictment? (R. 11).

Vv.

REASONS RELIED UPON FOR THE ALLOWANCE

OF THE WRIT

The reasons upon which petitioner relies for the al-

lowance of the writ are:

LMT LLL PLE BEES

(1) The Tenth Circuit, in holding that the above-

quoted Instruction on “intent” was not prejudicial, is in

conflict with the rule announced by: (a) The Eighth

Circuit [Shaddy v. United States, 30 Fed. (2d) 340; Cum-

mins v. United States, 232 Fed. 844; McCallum v. United

States, 247 Fed. 27]; (b) the Sixth Circuit (McKnight v.

United States, 115 Fed. 972); and (c) the Seventh Circuit

(Hibbard v. United States, 172 Fed. 66). Such rule is not

in harmony with the rule announced by this Court (Chaffee

v. United States, 85 U. S. 516, 21 L. Ed. 908; Coffin v.

United States, 156 U. S. 432, 39 L. Ed. 481; Agnew v.

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United States, 165 U. S. 36, 41 L. Ed. 624), and by the

Tenth Circuit itself. [Laws v. United States, 66 Fed.

(2d) 870}.

(2) The Tenth Circuit, in approving the above-

quoted Instruction on presumption of innocence, is in

conflict with the Fifth Circuit [Comila v. United States,

146 Fed. (2d) 372; Coffin v. United States, supra]. Said

Instruction is fundamentally wrong and limited and weak-

ened the Instructions theretofore given upon “Presump-

tion of Innocence” and “Reasonable Doubt.”

(3) The Tenth Circuit, in holding that the evidence

was sufficient as to the use of the mails as to Count Two

of the indictment, announced a rule in conflict with the

Eighth Circuit [Brady v. United States, 24 Fed. (2d) 399};

the Third Circuit [Freeman v. United States, 20 Fed. (2d)

748; Davis v. United States, 63 Fed. (2d) 545; Whealton

v. United States, 113 Fed. (2d) 710]; the Seventh Circuit

|Mackett v. United States, 90 Fed. (2d) 462]; the Second

Circuit [United States v. Baker, 50 Fed. (2d) 122]; the

Sixth Circuit (Underwood v. United States, 267 Fed. 412).

The rule announced is apparently in conflict with its

previous decision [Rosenberg v. United States, 120 Fed.

(2d) 935].

(4) There is no conflict in the record as to the nature,

character and extent of the evidence as to the proof of

the use of the mails as to said Count Two, and there is

presented the question of whether or not as a matter of

law the motion for directed verdict as to this count should

have been sustained.

LL

ales

WHEREFORE, It is respectfully submitted that this

petition for writ of certiorari to review the judgment of

the Circuit Court of Appeals for the Tenth Circuit should

be granted.

Joun B. DuDLEY,

1501 Apco Tower,

Oklahoma City 2, Oklahoma.

Attorney for Petitioner.

Rosert K. EVEREST,

Liberty Bank Building,

Oklahoma City 2, Oklahoma.

Dave TANT,

Fidelity Bank Building,

Oklahoma City 2, Oklahoma.

Of Counsel.