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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0578%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1945
- **Citation:** 325 U.S. 859

## Text

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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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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

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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:

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(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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0578%3A1. Public record. Not legal advice.