Appeals from the District Court of United States for the Southern District of Indiana, Indianapolis Division; Robert C. Baltzell, Judge.
Before ALSCHULER and EVANS, Circuit Judges, and WILKERSON, District Judge.
ALSCHULER, Circuit Judge.
The indictment which eventuated in these appeals charges the thirteen defendants therein named in a single count with a conspiracy with each other, and with others named and others unknown, to commit an offense against the United States, "which offense was that they, the said persons named and unknown, would then and thereafter and within the said division, unlawfully, knowingly and feloniously, and for sale for beverage purposes, manufacture, possess and transport intoxicating liquor which would contain one half of one per cent or more of alcohol by volume, and would be fit for beverage purposes, and that they would unlawfully, knowingly and feloniously and for beverage purposes, sell and transport said liquor within said division and that they would unlawfully and knowingly and within said division, maintain places where such liquor would be so unlawfully made, kept and sold."
Various overt acts are enumerated.
Defendant Stilson was not apprehended. Johnson pleaded guilty. The others were tried, and all except Hoover were convicted. Parkhurst alone does not appeal. Flatters and Kubeck dismissed their appeals. Appellant Dale was the mayor of Muncie, Ind.; Massey, the chief of police; Ellis, a member of the board of safety; Davis, Horstman, Nelson, and Powell were city policemen.
The several appellants were sentenced to various terms of imprisonment, and some of them also to pay fines. Each made similar assignment of errors, the first three dealing with the court's refusal to direct a verdict for the defendant, and in entering judgment on the verdict; the fourth and fifth alleging a want of evidence to sustain the verdict and judgment; the sixth asserting error in overruling motion in arrest; and the seventh and eighth dealing with allegedly improper statements made to the jury by the district attorney in his closing argument.
The enumeration of "contested issues" in the brief for appellants is an abbreviated statement of the assignment of errors as stated, with the addition of "3," an allegation of error in overruling motions for new trial; and under the title "errors relied upon" the assignment of errors is again set out with the same additional specification as last above.
Before considering the paramount issue of whether there is substantial evidence to support the judgment, we will take up some questions of comparatively minor importance which appellants raise. The first has to do, not with the transcript of record as filed, but with matters arising since the appeal was lodged.
It seems that one Duncan had given testimony which reflected especially on Dale and Massey. After the appeals had been perfected, one of the attorneys for the appellants presented to this court an affidavit setting forth that, since the perfection of the appeal, he had learned that Duncan desired to recant the testimony he had given, and that on interviewing him in a jail where he was confined the attorney found this to be the fact, and that he had asked leave of the district judge to have Duncan examined; that the district judge declined to act, on the ground that through the appeal that court had lost jurisdiction of the case. The attorney nevertheless examined Duncan before an official court stenographer through questions and answers, and a transcript of th examination was signed and sworn to by Duncan and presented to this court with an application for an order by this court to permit the District Court to consider such transcript, and any further evidence in relation thereto that the District Court might hear, in connection with the motion for a new trial, and to certify to this court its conclusions respecting such motion for new trial.
It appears from Duncan's testimony before the jury that before testifying he had made a written statement, which was in the possession of appellants' attorneys, in contradiction of the testimony he later gave in court, but that, when questioned about it, he testified in effect that the written statement was procured from him under duress and was not true, and that the truth was as he had testified. In opposition to the application here for leave to have him examined by the District Court, there were presented to this court the affidavits of three presumably reputable persons, two women and one man, to the effect that Duncan had stated to them, or in their presence, in substance that a recanting statement had been demanded of him by persons in the interest of appellants, under threats of personal injury in case he declined to give it; and that, in protection of himself, he was going to give the statement, but that he wished to have these persons present within hearing distance but in concealment when it was done, and stating to them that the evidence he gave at the trial was true.
We thus have the diametrically opposite statements of this witness as testified by him before the jury, as well as the very contradictory statements appearing before us. Under these circumstances, as well as from various manifestations in the record of Duncan's unreliability, and as well as the state of the record without Duncan's testimony, we do not believe any good purpose would be served by granting appellants' motion to refer the matter to the District Court for its consideration in connection with a motion for a new trial; and in the exercise of our discretion as to such matters [Perry v. United States, 39 F.2d 52, 54 (C.C.A. 5)] the application for such reference to the District Court is hereby denied. Larrison et al. v. United States (C.C.A.) 24 F.2d 82.
The only other contention made, apart from that of sufficiency of the evidence, is in regard to alleged statements in the closing argument of the district attorney. These are made to appear solely through their incorporation in the motions for new trial, other than which nothing thereon appears in the record. They are not included in the bill of exceptions. For the most part they consist of alleged statements of fact of which appellants say thrre was no evidence. No objections to the statements were made or exceptions taken. The court was not asked to make a ruling thereon while the jury was in the box. One cannot permit such statements to go unchallenged at the time when, if improper, they might be corrected, and afterwards, when too late to correct them, bring them, for the first time, to the court's attention. De Bonis v. United States, 54 F.2d 3 (C.C.A. 6); Carlisle v. United States, 194 F. 827 (C.C.A. 4); Marco et al. v. United States, 26 F.2d 315 (C.C.A. 9); McIntosh v. United States, 1 F.2d 427 (C.C.A. 7). Omission to complain in time persuasively suggests that even counsel, deeply interested in the case, were not then so impressed with the significance of the misstatements as to call the court's attention thereto. Generally it may safely be said that, if such misstatements did not at the time sufficiently impress counsel as being harmful, it is not likely that they materially affected the jury.
A statement in argument*fn1 respecting the nonproduction of character witnesses for appellants was likewise first presented through a motion for new trial, and does not appear in the bill of exceptions. ...