Heinze v. United States

NOYES, Circuit Judge (after stating the facts as above). The defendant’s principal contention is that the evidence failed to show that he impeded the administration of justice because: (a) He did not act in the premises until after the writ of subpoena had been returned by the marshal and had thereby become functus officio. (b) After the return of the writ there was nothing to obstruct or impede. This contention is based wholly upon the fact that the subpoena which was issued upon May 21, 1909, and required the attendance of Buckingham upon May 24th, bore the indorsement shown in the foregoing statement of facts. The defendant contends that this indorsement established that the subpoena was returned to the clerk of the court upon May 21st—the day of its daté—and consequently had become functus officio on May 22d—the day when, according to the testimony, the defendant induced Buckingham to leave the country. We perceive no warrant for the defendant’s contention. There was no proof whatever that the subpoena was ever returned to the clerk. The indorsement was merely the record of the doings of the officer upon a particular day—the 21st—and any presumption which might arise that it constituted a record of all his doings with respect to the subpoena is rebutted by the testimony of the deputy marshal that upon the following day—the 22d—he again tried to serve it. The indorsement, in and of itself, in no way affected the validity of the subpoena. There was therefore no error in denying the motion to dismiss the indictment on account of the absence of proof that the writ of subpoena was outstanding at the time of the defendant’s acts; and certainly there was no error in denying such motion upon the ground that the offense charged was not established in other respects. The testimony, not objected to and not contradicted, showed beyond the slightest doubt that the defendant had sent Buckingham out of the country and had furnished him money with which to go out and stay out; had in the most flagrant manner attempted to obstruct and impede, and had obstructed and impeded, the administration of justice in a Circuit Court of the United States. The sentence which the trial court saw fit to impose does not indicate the serious nature of the offense. In this state of the proof it is unnecessary to examine at very great length the alleged errors in the admission of testimony. If there were technical errors, the defendant could not have been prejudiced thereby. Thus, with positive and uncotitroverted evidence that the defendant had induced Buckingham to go to Canada and had given him money for his expenses, there was no practical injustice in receiving a telegram objecting to sending more money, even if the defendant’s responsibility for such telegram were not clearly established. So, with the defend [325] ant’s own acts clearly shown, he was not harmed by the admission of evidence indicating that prior to his intervention Buckingham had himself evaded service. And the same is true with respect to the admission of other testimony to which objection is made. But, while in case there were any technical errors in admitting testimony, we could hardly regard them as prejudicial, we are not at all satisfied! that there were any such errors. There was evidence to warrant the trial judge in finding that the cipher telegram came into the defendant’s possession and secondary evidence of its contents was properly received. The telegram which Buckingham received was obviously a reply to the message which he sent, and we think it the better view that it was properly admitted as a reply telegram. The testimony as to what took place when the deputy marshal attempted to serve the subpoena on May 21st was properly received. It showed Buckingham’s presence within the jurisdiction at the time and the efforts made to serve the subpoena. We think that the trial court properly limited the scope and effect of this testimony. The testimony concerning the removal of the books of the United Copper Company and the occurrences at the United Copper Company’s office prior to the issuance of the subpoena tended to show the knowledge on the part of the defendant of the proceedings before the grand jury and of that which Buckingham could testify to if called as a witness and furnished the motive for sending him out of the jurisdiction. This testimony was properly received as well as the question of F. A. Heinze to Buckingham in the presence of the, defendant: “Have you a good memory ?” Finally the defendant complains of the attitude of the trial court toward him. We are, however, unable to see that the defendant was substantially prejudiced by any act of the court, and anyway, as there are no exceptions in this regard, nothing is presented for us to determine. The judgment of the Circuit Court is affirmed.