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In re United States.

February 15, 1939

EX PARTE UNITED STATES.


Author: Kerner

Before EVANS, MAJOR, and KERNER, Circuit Judges.

KERNER, Circuit Judge.

The United States (petitioner) is here applying for a writ of mandamus requiring the honorable Patrick T. Stone, District Judge, sitting in the United States District Court for the western District of Wisconsin, to set aside two orders and to direct new trials as to certain defendants in the criminal case of United States v. Standard Oil Company of Indiana et al.*fn1 The order of July 19, 1938 was in the form of a judgment non obstante veredicto.*fn2 The order of September 21, 1938 amended the former order so as to show that the judgment non obstante veredicto was pursuant to a reserved ruling on motions for directed verdicts of acquittal. The case is here for decision upon the return of the District Judge (respondent) to a rule to show cause why the application for the writ should not be granted. The facts follow.

The government started its prosecution in the case of United States v. Standard Oil Company of Indiana et al., supra, on October 4, 1937. Evidence was adduced before court and jury for a period of over three mouths.*fn3 On January 17, 1938, after all the evidence was in, motions for directed verdicts of acquittal based on the insufficiency of the evidence were duly presented by forty-six defendants. On the same day, the respondent expressly reserved his ruling on these motions until after the verdict of the jury.*fn4 On January 21, when the jurors retired, the respondent by ex parte order denied these motions.*fn5 On January 22, the jury returned verdicts of guilt against all of the defendants.

Thereafter, the defendants moved to set aside the verdicts and to dismiss the indictment. During the ensuing hearing, argument predicated on the theory that the respondent had reserved his ruling on the motions for directed verdict was made.*fn6 Respondent then entered his order of July 19 rendering eleven judgments in form non obstante veredicto.*fn7

The government in turn filed a petition to rescind and expunge the order of July 19 on the ground that the court lacked the power to render a judgment non obstante veredicto. Petitioner, however, in the recital of facts stated that respondent had reserved his ruling on the motions for directed verdict. In the meantime, respondent on his own motion had entered two nunc pro tunc orders modifying the record. On August 4 he ordered an amendment of the order of January 21 so as to show that the denial of the motions for directed verdict had been made subject to the court's reserved ruling after the verdicts.*fn8 On September 21, he ordered an amendment of the order of July 19 so as to show that the judgment non obstante veredicto has been rendered pursuant to his reserved ruling on the motions for directed verdicts of acquittal.*fn9 On September 22 the rescinding and expunging petition was denied by respondent.*fn10 Thereupon petitioner applied in this court for a writ of mandamus requiring respondent to set aside the orders of July 19 and September 21 and to direct new trials for the eleven defendants.

Petitioner's application for a writ of mandamus is based fundamentally on the theory that, although respondent had the power to set aside the verdicts for insufficiency of the evidence, he lacked the power to dismiss the defendants. From this counsel argue that respondent has placed himself in a position where only the power to direct new trials remains open to him. We agree with petitioner that power to dismiss is the real question here and that in the absence of such power the writ of mandamus must issue. First it is necessary, however, to ascertain what power exercised by respondent is the target of condemnation.

The record as it stood prior to the rectifying nunc pro tunc orders of August 4 and September 21 presents some confusion as to the exact procedural step taken by respondent during the trial. Respondent in his answer to the rule to show cause explained that he reserved his ruling on the motions for directed verdict. Under the rule announced in Thatcher v. Killits, 6 Cir., 195 F. 471, a respondent judge's answer in a mandamus suit is conclusive as to the facts alleged therein. However, we do not think that it is necessary to resort to this general rule in an effort to reach the same result justifiably.

Affidavits by counsel on both sides indicate considerable disagreement and disturbance as to whether respondent in fact reserved his ruling until after the return of the jury. On January 17 he expressly reserved his ruling and added that he would hear arguments on the motions at a day subsequent to the return of the jury. On January 21, when the jurors retired, he signed an ex parte order denying the motions for directed verdicts, without considering the merits thereof and without hearing argument thereon. Government counsel contend that the order was absolute and point for support to the judgment of July 19 which is non obstante veredicto in form. Respondent's counsel contend that the order was qualified by the express reservation of January 17 and point for substantiation to argument based on the postponed motions for directed verdict.

We believe that the ex parte character of the order of January 21 alone is sufficient to preclude any justifiable conclusion that in substance it was absolute and unconditional. We are satisfied, from the complete picture of circumstances enveloping the procedural action in question, that if any weight is to be given the order of January 21, it will have to be in connection with the uncontradicted reservation of January 17, made before all the parties and their counsel without objection. We conclude, therefore, that respondent in fact reserved his ruling on the pre-verdict motions and that as a consequence he was exercising his clear discretionary power in eliminating the embarrassment and confusion that had arisen. Thus, petitioner cannot impeach the nunc pro tunc order of August 4, which merely connects the reservation of January 17 with the order of January 21. nor can petitioner challenge the nunc pro tunc order of September 21, which merely modifies the July 19 judgment from one in form non obstante veredicto to one non obstante veredicto made pursuant to a reserved ruling. At the most these errors were errors of form or of inadvertence not unusual in view of the length of the case involved. Respondent exercised his inherent power in making the record more clearly speak the truth. Unless a trial court clearly abuses its discretionary powers, an appellate court will refrain from disturbing orders of modification and amendment, which seek only to make the record speak the truth.

The record reveals that in the criminal case motions for directed verdicts of acquittal were made by forty-six defendants on the ground of insufficiency of the evidence. The court then reserved its ruling and submitted the case to the jury subject to the ultimate ruling on the legal question reserved. After the jury's return of guilt, the court considered the motions requesting directed verdicts of acquittal, and rendered judgments of dismissal as to eleven defendants. It is therefore necessary to decide, not only whether this procedure violates the constitutional guaranty of trial by jury, but also whether the trial court had power to discharge the defendants pursuant to its reservation of the determination of the legal insufficiency of the evidence.

In the administration of justice in England there came a transition from the local justice of the Anglo-Saxons to the King's justice of the Tudors and Stuarts. During the transition period trial by might was superseded by trial by court machinery in the form of a judge and jury. As time went on, the line of demarcation between the province of the judge and the province of the jury was being drawn. The guiding principle was later enshrined in our American Constitution,*fn11 Ad quaestionem facti non respondent judices, ad quaestionem juris non respondent juratores.*fn12 The constitutional guaranty restrains the lay jury to the limited and special role of determining controverted issues of fact. Questions of law, methods of practice, and points of procedure are exclusively the province of the judge. Thayer, A Preliminary Treatise on Evidence at the Common Law, (1898), pp. 183-262, 217.

Although the limits of the constitutional maxim have varied from time to time, one important issue - the legal sufficiency of the evidence - required judicial attention from the start. Ordinarily, the judge exercised the power to pass on this legal question during the trial.*fn13 Frequently, however, he would resort to the practice of reserving the issue of law until after the return of the jury.*fn14 If after consideration he decided that the conditional verdict of guilt was unjust on the ground of legal insufficiency of the evidence, he would dispose of the whole case by recommending royal clemency.*fn15 In civil cases the normal procedure was by judgment non obstante veredicto. Baltimore & Carolina Line v. Redman, 295 U.S. 654, 659, 660, 55 S. Ct. 890, 79 L. Ed. 1636. However, at the common law, neither procedure, although non obstante veredicto in substance, invaded the province of the jury.

In this case, the guilt or innocence, as far as the eleven defendants are concerned, is not in issue. That there was insufficient evidence to convict must be presumed. In other words, in this case there was no fact to be tried by the jury.*fn16 The nature of the legal question involved was not altered by the jury's verdict of guilt. By virtue of the reservation, the issue of law was preserved inviolate despite the verdict of guilt. It is plain that the procedure of dismissing the defendants pursuant to the reservation did not in any way disturb the settled line of distinction between the province of the judge and the province of the jury. If the right to a trial by jury is not denied when the jury is directed to find a particular verdict, it is difficult to see how any such right is denied by a judgment of dismissal made ...


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