McShann v. United States

Tenth Circuit

McShann v. United States

38 F.2d 635, 1930 U.S. App. LEXIS 2376

CourtCourt of Appeals for the Tenth Circuit

DecidedFebruary 8, 1930

DocketNo. 122

StatusPublished

Cited by9 cases

This text of 38 F.2d 635 (McShann v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McShann v. United States, 38 F.2d 635, 1930 U.S. App. LEXIS 2376 (10th Cir. 1930).

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Opinion

PER CURIAM.

The defendant was convicted of possessing a still designed and intended for the manufacture of liquor.

Error is assigned because of the refusal of the trial court to continue the cause in order that the defendant might procure the attendance of a material witness. The defendant was arrested on May 1, 1928, and tried December 3, 1928. The affidavit for continuance was filed the day of the trial. It sets out that the witness resides in Kansas City, Kan., and that defendant was without financial means to procure his attendance, and that such witness would testify that he was responsible for the still, and that defendant was not implicated. The brief of appellant advises us that an ineffective effort to subpoena this witness was made on November 21. There is no showing that the. [636]*636witness would have heen. present, or that his attendance could be procured) if the continuance had been granted. Questions as to continuances are within the sound discretion of the trial court. Woods v. United States (8 C. C. A.) 26 F.(2d) 63; Gray v. United States (8 C. C. A.) 14 F.(2d) 366; Brady v. United States (9 C. C. A.) 26 F.(2d) 400. There was no abuse of that discretion.

Errors assigned as to proceedings at the trial, including refusal to permit the defendant’s wife to testify, and the use of evidence taken without a search warrant, are not before us, for lack of a bill of exceptions stating the testimony of the witnesses in narrative form. Tingley v. United States (10 C. C. A.) 34 F.(2d) 1; Caldwell v. United States (10 C. C. A.) 36 F.(2d) 738, decided October 16, 1929; Davis v. United States (10 C. C. A.) 38 F.(2d) 631, decided February 5, 1930. Moreover, one cannot complain of an unlawful search of another man’s house. Coon v. United States (10 C. C. A.) 36 F.(2d) 164; Morris v. United States (8 C. C. A.) 26 F.(2d) 444; Rosenberg v. United States (8 C. C. A.) 15 F.(2d) 179; Graham v. United States (8 C. C. A.) 15 F.(2d) 740.

By inadvertence, a sentence was imposed on the second count of the information. The defendant was not named in the' second count, and the sentence imposed on that count should be set aside.

The judgment on the first count is affirmed ; on the second count reversed.

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PER CURIAM.

The defendant was convicted of possessing a still designed and intended for the manufacture of liquor.

Error is assigned because of the refusal of the trial court to continue the cause in order that the defendant might procure the attendance of a material witness. The defendant was arrested on May 1, 1928, and tried December 3, 1928. The affidavit for continuance was filed the day of the trial. It sets out that the witness resides in Kansas City, Kan., and that defendant was without financial means to procure his attendance, and that such witness would testify that he was responsible for the still, and that defendant was not implicated. The brief of appellant advises us that an ineffective effort to subpoena this witness was made on November 21. There is no showing that the. [636]*636witness would have heen. present, or that his attendance could be procured) if the continuance had been granted. Questions as to continuances are within the sound discretion of the trial court. Woods v. United States (8 C. C. A.) 26 F.(2d) 63; Gray v. United States (8 C. C. A.) 14 F.(2d) 366; Brady v. United States (9 C. C. A.) 26 F.(2d) 400. There was no abuse of that discretion.

Errors assigned as to proceedings at the trial, including refusal to permit the defendant’s wife to testify, and the use of evidence taken without a search warrant, are not before us, for lack of a bill of exceptions stating the testimony of the witnesses in narrative form. Tingley v. United States (10 C. C. A.) 34 F.(2d) 1; Caldwell v. United States (10 C. C. A.) 36 F.(2d) 738, decided October 16, 1929; Davis v. United States (10 C. C. A.) 38 F.(2d) 631, decided February 5, 1930. Moreover, one cannot complain of an unlawful search of another man’s house. Coon v. United States (10 C. C. A.) 36 F.(2d) 164; Morris v. United States (8 C. C. A.) 26 F.(2d) 444; Rosenberg v. United States (8 C. C. A.) 15 F.(2d) 179; Graham v. United States (8 C. C. A.) 15 F.(2d) 740.

By inadvertence, a sentence was imposed on the second count of the information. The defendant was not named in the' second count, and the sentence imposed on that count should be set aside.

The judgment on the first count is affirmed ; on the second count reversed.

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38 F.2d 635, 1930 U.S. App. LEXIS 2376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcshann-v-united-states-ca10-1930.

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