ÆäÀÌÁö À̹ÌÁö
PDF
ePub

FORDSON COAL CO. v. MAGGARD, Sheriff.

(Circuit Court of Appeals, Sixth Circuit. December 2, 1924.)

No. 4107.

I. Injunction 135-Sound discretion usually requires temporary injunction, where irreparable damage shown, and defendant can be protected by bond.

Where plaintiff shows reasonable probability of prevailing on final hearing, and that his damage will be irreparable if injunction is refused, sound discretion usually requires that temporary injunction be granted, where defendant by proper bond can be secured against any resulting damage.

2. Taxation 608 (9)-Injunction remedy to restrain enforcement of illegal tax, refund provision not being adequate legal remedy.

In Kentucky courts, and in the federal courts, bill in equity will lie to enjoin enforcement of illegal tax on land; Ky. St. § 162, providing for refunds, not being completely adequate legal remedy.

3. Taxation 608(10)-Injunction not available because tax arbitrarily high, adequate legal remedy being provided therefor.

Injunction will not lie to restrain enforcement of tax because assessment is arbitrarily high as compared with other lands similarly situated; Ky. St. § 4128, providing adequate legal remedy by review and appeal, and, in case of infringement of federal due process clause, review in United States Supreme Court being effectual.

4. Taxation 611 (9)-Preliminary injunction held required, where validity of tax assailed for want of statutory notice.

Where plaintiff's claim that necessary notice of assessment provided by Ky. St. §§ 41204123, was not given, involved questions of law, or. fact and law, determinative of validity or illegality of tax sought to be restrained, sound discretion held to require preliminary injunc

tion.

Appeal from the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge. Injunction by the Fordson Coal Company against W. J. Maggard, as Sheriff, to restrain collection of tax. From an order denying a preliminary injunction, plaintiff appeals. Reversed.

Cleon K. Calvert, of Pineville, Ky. (W. R. Middleton, of Detroit, Mich., and Clifford B. Longley, of Detroit, Mich., on the brief), for appellant.

William Lewis, of London, Ky. (Lewis & Lewis, of London, Ky., and Will C. Hoskins, of Hyden, Ky., on the brief), for appellee.

Before DENISON, DONAHUE, and KNAPPEN, Circuit Judges.

DENISON, Circuit Judge. The District Court refused a preliminary injunction to prevent the collection of a tax, but continued the restraining order pending this appeal.

[1] While it is the rule that the granting or refusing of a preliminary injunction is discretionary, yet it is equally well settled that if the plaintiff makes a case showing a reasonable probability of prevailing on the final hearing, and if his damage will be irreparable if the injunction is refused, while defendant can, by proper bond, be secured against any damage coming from the temporary injunction, a sound discretion usually requires it to be granted. Louisville v. Louisville Co. (C. C. A. 6) 279 F. 956.

[2] It has long been the rule of the Kentucky courts and of this court that a bill in equity would lie to enjoin the enforcement of an illegal tax upon land. Louisville Trust Co. v. Stone, 107 F. 305, 309, 46 C. C. A. 299. Section 162 of the Kentucky Statutes has not given such a completely adequate legal remedy as to change this rule in such a case as this. County v. Bosworth, 160 Ky. 312, 169 S. W. 742; Craig v. Taylor, 192 Ky. 36, at page 58, 232 S. W. 395. Even if the section would otherwise apply to such alleged invalidity and such a tax as are here involved, it could only touch that fraction of the tax which may ultimately reach the state treasury.

[3] One of plaintiff's claims is that the assessment of its lands was arbitrarily high as compared with other lands similarly situated, and was therefore in law fraudulent and in violation of the due process clause. Not only would we hesitate to review the District Judge's (probable) conclusion that plaintiff's showing on this point did not indicate any substantial probability of final success, but for any such erroneous assessment there is apparently a complete and adequate remedy by the review and appeal proceedings prescribed by section 4128 of the Kentucky Statutes, which brings such controversy ultimately to the Kentucky Court of Appeals. Sanford v. Roberts, 193 Ky. 377, 236 S. W. 571. If there is involved an infringement of the federal due process clause, the Supreme Court of the United States, on review of the state court, would effectuate the federal guaranty.

[4] The other claim is that plaintiff did not have the necessary notice of the assessment. Passing by every other question, we are so far impressed with plaintiff's claim as to the effect of sections 4120-4123, Ky. St., that we think it should have consideration upon the final hearing, with the aid of the thorough attention which it seemingly did not have upon this motion, if, indeed, it was at all developed and brought to the attention of the District Judge. However that may be, it is a legal question outstanding

upon

In Error to the District Court of the United States for the Eastern District of Michigan; Charles C. Simons, Judge.

Nick Link was convicted of subornation of perjury under Criminal Code, § 126 (Comp. St. §10296), and he brings error. Judgment affirmed.

H. A. Behrendt, of Detroit, Mich. (Behrendt & Behrendt, of Detroit, Mich., on the brief), for plaintiff in error.

James J. Spillane, Asst. U. S. Atty., of Detroit, Mich. (Delos G. Smith, U. S. Atty., of Detroit, Mich., on the brief), for the United States.

2 F.(2d) 709 the record. This claim is that the first meeting of the board of supervisors, at which it is said plaintiff's agent attended and was heard, is only a meeting for assessment; that the second meeting is one for review; and that the taxpayer has an absolute right to notice of the assessment after it is made, in order that he may appear upon the review and be heard, or, if he had been present at the first meeting, may be further heard-in other words, that the notice which the statute directs, intermediate these two meetings, is mandatory. This leads to the further claim, which we also characterize as at least deserving preservation until the final hearing, that when the taxing authorities do not give the notice of section 4122 personally to owners agent, but resort to posting, it is not sufficient to post upon one out of the several listed tracts belonging to the same owner, and that the effect of such single posting does not go beyond the listed tract with which it may be sufficiently identified, and upon which it may be properly posted. These two claims, one of law and one which may be of fact or law, or both, when taken together, present a question which we think should be preserved alive until final hearing, and hence that a sound discretion required the provisional injunction.

or

Accordingly the order below is reversed, and the preliminary injunction will issue upon terms and security to be fixed by the District Court.

LINK v. UNITED STATES.

Before DENISON, MACK, and DONAHUE, Circuit Judges.

DENISON, Circuit Judge. Link asks a review of his conviction under section 126 of the Criminal Code (Comp. St. § 10296) for subornation of perjury.

[1] 1. The indictment undertook to allege in the same count, first, the commission of perjury by one Almashy, and then the subornation thereof by Link. The false oath was made before a United States Commis sioner, to procure, under the National Prohibition Act (Comp. St. Ann. Supp. 1923, 8 101384 et seq.), a search warrant for a house, and declared a purchase there by Almashy. The indictment-allegation of Almashy's perjury was in all respects completely formal, save that it omitted the word "willfully." The allegation of subornation is "one Nick Link, well knowing that the affidavit so given

as

aforesaid was knowingly, willfully and corruptly made, as aforesaid, did feloniously

(Circuit Court of Appeals, Sixth Circuit. De- willfully and corruptly suborn, incite and

cember 8, 1924.)

No. 4104.

1. Perjury 27-Subornation of perjury indictment, omitting word "willfully" in characterizing perjury, held sufficient.

Indictment for subornation of perjury, which alleged commission of perjury by one person and subornation by another, but omitted the word "willfully" in characterizing original perjury, held sufficient in view of other recitals of indictment and in view of Rev. St. § 1025 (Comp. St. § 1691), and Judicial Code, § 269 (Comp. St. § 1246).

33

2. Criminal law 304 (17)-Perjury
(5)-Affidavit held sufficient proof of oath, in
absence of objection.

In prosecution for subornation of perjury where copy of affidavit was exhibited and signature was admitted by perjurer and counsel without objection stated that affidavit was. "sworn to before J. S. H., U. S. Commissioner," held, further proof that false oath was in fact taken or of official character of person who administered oath was unnecessary; the commissioner being an officer of the court whose official position was judicially known

to it.

procure, etc." We are not prepared to say
that in view of the scope which the courts
in late years have given to the curative ef-
fects of R. S. § 1025 (C. S. 1916, § 1691),
and section 269 of the Judicial Code (Comp.
St. § 1246), we would now be as strict in
requiring the presence of "willfully" in a
perjury indictment, as were some of the
older decisions, like U. S. v. Edwards (C.
C.) 43 F. 67, and U. S. v. Howard (D. C.)
132 F. 325 (though see U. S. v. Cruikshank,
92 U. S. 542, 23 L. Ed. 588). The strict-
ness would be particularly unnecessary in a
case where the full circumstances stated
However
strongly suggested willfulness.
that might be, when we find that the false
oath was taken, knowing it to be false, and
then that its making was corruptly suborned
and procured by another, every suggested
element of perjury carried by the word
"willfully" is to be found in the complete

indictment-save for the possibility that the falsehood might have been inadvertent or under compulsion. How these possibilities can be reconciled with the allegation that the oath was "corruptly suborned and procured" is not clear; but this indictment goes further. In the subornation clause, it expressly recites that the false oath had been "willful." We think this recital is sufficient, as against the suborner, to supply any otherwise possibly existing defect in the allegation of willfulness. We do not find that the exact point has been decided, but the tendency of the late decisions under R. S. § 1025, is to this effect. See Nickell v. U. S.. (C. C. A. 9) 161 F. 702, 88 C. C. A. 562.

[2] 2. The motion to direct a verdict for

defendant is now said to have been based upon the lack of any sufficient proof that the false oath was in fact taken or of the official character of the person who administered the oath as United States Commissioner. The record contains, as Exhibit No.

1, attached to the bill of exceptions, what purports to be a copy of the affidavit in question, signed by Almashy (under a false name) and sworn to before J. Stanley Hurd,

United States Commissioner. This exhibit

was shown to Almashy and he admitted signing it. It was then stated by counsel, in the presence of the witness and without objection by any one, that the affidavit was "sworn to before J. Stanley Hurd, U. S. Commissioner." This statement being unchallenged, and Mr. Hurd being an officer of the court whose official position was judicially known to the court, and his signature not having been questioned when the exhibit was received in evidence, there was no necessity for further proof of official character, signature, or administration of

oath.

3. The other objections presented have been considered, but we find nothing else meriting discussion.

The judgment is affirmed.

PARKER v. UNITED STATES.

fair comment, and prejudicial error was not avoided by informing jury they need not adopt judge's opinion.

In Error to the District Court of the

United States for the Western District of Tennessee; J. W. Ross, Judge.

Re

Sam Parker was convicted of violation of the Mann Act, and he brings error. versed and remanded.

A. B. Galloway, of Memphis, Tenn. (A. E. Weinstein, of Memphis, Tenn., on the brief), for plaintiff in error.

W. H. Fisher, Asst. U. S. Atty., of Memphis, Tenn. (S. E. Murray, U. S. Atty., and A. A. Hornsby, Asst. U. S. Atty., both of Memphis, Tenn., on the brief), for the Unit

ed States.

Before DENISON, MACK, and DONAHUE, Circuit Judges.

the Mann Act (Comp. St. §§ 8812-8819), PER CURIAM. On a prosecution under it appeared without dispute that the prosecuting witness, a girl of 17, had been having sexual relations with a young man who 20, though married; that shortly after their introduced her to the defendant, a youth of first meeting she and defendant began and

continued illicit sexual relations for about two months; that both then went from Tennessee into Illinois, where they lived together for several weeks and represented themselves to be man and wife. Both were witthis point in dispute between them was nesses at the trial. The only matter up to whether he had gone to Illinois to get away from her and she had followed without his knowledge, or whether they had gone together at his request and at his expense. Which one told the truth on this point was the vital issue.

It was further admitted that after both had returned and after this prosecution was commenced they again lived together a few days. When the matter first came to the attention of the Department of Justice, she gave the investigator a sworn statement in line with her testimony on the trial. Ten

(Circuit Court of Appeals, Sixth Circuit. De- days later the defendant procured from her cember 3, 1924.)

No. 4050.

Criminal law 762(3)-Instruction of judge belittling defense held prejudicial error.

Where evidence in prosecution for transporting female for illicit purposes. was sharply conflicting and defendant contended that he left the state to get away from his paramour and that she followed him, an instruction belittling such defense held beyond permissible limit of

an affidavit that she followed him to Illinois without his aid or knowledge. After the indictment she wrote defendant's father a letter offering to go away and "get Sam out of trouble" if the father would pay the money required by some unnamed boy, who would marry her on that condition. On the other hand, there were circumstances tending to support her story and to discredit de

2 F.(2d) 711

MUSICK v. UNITED STATES.

fendant as a witness. The defendant of

cember 8, 1924.)

No. 3168.

1. Criminal law 982-Pardon 4-Court may postpone imposition of sentence for any lawful purpose, but cannot exercise such right as pardon or parole.

fered evidence tending to prove that she (Circuit Court of Appeals, Third Circuit. Dewas of bad repute for chastity prior to the time he became acquainted with her. This evidence was excluded. There were 12 witnesses at the trial. It lasted during the day. The charge was felony, and resulted in conviction and sentence of a year in the penitentiary. The importance of the issues and the conflict of proofs did not justify summary treatment. Defendant's counsel was allowed only 20 minutes for argument.

In this environment the court, after fairly stating the conflicting claims and having referred to defendant's contention that the girl had followed him to Illinois, charged the jury: "If (that) is a reasonable contention to you, you are warranted in so regarding it; if you think it is an unreasonable contention, then you may or may not give it such consideration as you think proper. To me it is wholly unreasonable. I don't know how this government witness impressed you jurors. She impressed me as being a girl perhaps easily persuaded, being a girl whose environments had been such as that she might fall an easy victim to the persuasions of designing men. Now, that is simply how she impressed me, and you gentlemen are not to be influenced by my impressions concerning her. Personally I would rather believe the girl who had been wronged than the man who would desert his wife and children to wrong her; but that is another impression that is personal to me, and which you are not to regard in any way whatsoever, or for any purpose."

Under all the recited circumstances, we are compelled to think this portion of the charge to have the aspect of argument and advocacy beyond the permissible limit. Wallace v. U. S. (C. C. A.) 291 F. 972, and cases cited. (The Wallace Case was decided, after the trial of this case.) An objection in this respect is not necessarily removed by the formal statement that the jury was under no obligation to adopt the judge's opinion; indeed, that statement may well be put in such a form as to imply disparagement of the jury's intelligence if it does not agree with the judge; the present charge does not lack that atmosphere.

As to the other errors alleged, we conclude, either that the assignments are not supported, or are not of sufficient importance to justify discussion.

The judgment is reversed and the cause remanded for new trial.

Court may temporarily postpone imposition of sentence from time to time, and even from term to term, to hear and determine motions and matters arising between verdict and judgment, to gain information leading to just sentence, and for any legitimate purpose, but it cannot by postponement of sentence exercise power of pardon or of parole conditioned on good behavior.

2. Habeas corpus 85(1)-Postponement of sentence presumed for lawful purpose.

Where record did not show that postponement of sentence until second term following conviction was conditional and indefinite, it must be presumed that it was for lawful purpose incidental to administration of justice.

[blocks in formation]

WOOLLEY, Circuit Judge. At the March Term, 1923, of the District Court of the United States for the Middle District of Pennsylvania, sitting at Scranton, Pennsylvania, Musick was convicted on all counts of an indictment charging violations of the National Prohibition Act. 41 Stat. 305. (Comp. St. Ann. Supp. 1923, § 101381⁄4 et seq.). The court postponed sentence until the March Term, 1924, the second term at Scranton following the term of conviction, and ordered the prisoner to enter into a recognizance for his appearance at that time. Pursuant to his undertaking he appeared at the later term and submitted to prived of his liberty by a sentence imposed sentence. Conceiving that he had been dewithout authority of law, the defendant filed a petition for a writ of habeas corpus, which the court denied. The defendant now brings this appeal, raising the question, as he states it: Has a federal court the power to defer sentence conditioned on good behavior and, one year beyond the term of conviction, pronounce sentence?

The record contains only the written papers and orders in the case. The reason for the court's action does not appear. The petitioner takes the ground that the court postponed the sentence conditioned on his good behavior, and that its action was in effect a parole and therefore unlawful, and that, in consequence, the court had lost jurisdiction of the case. The Government, on the other hand, asserts that the postpone ment (like the accompanying recognizance) was unconditional and was made for the purpose, as stated by the learned trial judge, to enable him to investigate the character and conduct of the prisoner with a view to a proper sentence.

lawful, or that it was otherwise than incidental to the administration of justice. Indeed, every legal intendment favors the notion that the court had a purpose in what it did and that the purpose was lawful. And this, in the absence of anything in the record to the contrary, we shall assume. Finding that the court had not lost jurisdiction of the case when it imposed sentence, the order dismissing the petition for a writ of habeas corpus is sustained.

ALLEN v. ERIE R. CO.

[1] The law of the subject is, in several (Circuit Court of Appeals, Sixth Circuit. De

aspects, settled. In Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355 (on which the petitioner mainly relies) the Supreme Court held that the suspension of a sentence after it has been imposed is beyond the power of the court. It is also generally held that a court may temporarily suspend the imposition of sentence in a criminal cause and continue to do so from time to time, and, indeed, from term to term, for the purpose of hearing and determining motions and matters which arise between verdict and judgment; also to gain information that will lead to a just sentence, and, in fact, "for any legitimate purpose,' or "good and valid reason." But a court cannot by the artifice of postponing pronouncement of sentence exercise a power of parole conditioned on good behavior, or a power of pardon, not conferred upon it. United States v. Wilson (C. C.) 46 F. 748, 749; Ex parte United States, 242 U. S. 27, 46, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355; Kansas v. Sapp, 87 Kan. 740, 125 P. 78, 42 L. R. A. (N. S.) 249; State v. Crook, 115 N. C. 760, 20 S. E. 513, 29 L. R. A. 260, 261; Miner v. United States, 244 F. 422, 157 C. C. A. 48, 3 A. L. R. 995 and cases cited.

[ocr errors]

[2] Applying these observations to .the record, we find nothing which warrants the petitioner's statement that the postponement of his sentence was conditioned on his good behavior. So far as the record shows, the postponement was unconditional and specifically definite. This being the fact we think the case is ruled by the law of Miner v. United States, 244 F. 422, 157 C. C. A. 48, 3 A. L. R. 995, where also postponements were regular and definite though the reason for them was not given. We cannot say that the reason which moved the court to defer sentence in this case was improper or un

cember 2, 1924.)

No. 4054.

Carriers 307 (4, 6)-Contract between railroad and employé of manufacturer of engine appliance held to release railroad from liabil. ity for negligence; agreement to observe employés' rules held not to affect validity of release.

Contract executed by person employed to inspect engine appliance on locomotives for damages arising from his presence on locomomanufacturer, which released railroad from all tive, held to release railroad from liability for negligence, since, whatever his status, there would be no liability, except for negligence, and his agreement to observe railroad employés' rules did not affect validity of release.

In Error to the District Court of the United States, for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge.

Action by Goldie I. Allen, administratrix, against the Erie Railroad Company. Judg ment for defendant, and plaintiff brings er

ror. Affirmed.

Luther Day, of Cleveland, Ohio (Day & Day and R. H. Dawson, all of Cleveland, Ohio, on the brief), for plaintiff in error.

Edward A. Foote, of Cleveland, Ohio (Cook, McGowan, Foote, Bushnell & Burgess, of Cleveland, Ohio, on the brief), for defendant in error.

Before DENISON, MACK, and DONAHUE, Circuit Judges.

PER CURIAM. Allen was killed by the explosion of the boiler of the locomotive in which he was riding. He was in the general employment of a company which manufactured an appliance which had been installed on this engine, and, for his employer's benefit, he was observing, inspecting, and perhaps adjusting this appliance. He had executed the release contract shown in

« ÀÌÀü°è¼Ó »