Moore v. United States, 1 F.2d 839 (9th Cir. 1924)

*840 *841 J. Robert O'Connor and Schenck & Kittrelle, both of Los Angeles, Cal., for plaintiffs in error.

David V. Cahill and Charles L. Nichols, Sp. Assts. Atty. Gen., for the United States.

Before GILBERT, ROSS, and RUDKIN, Circuit Judges.

RUDKIN, Circuit Judge (after stating the facts as above).

The first and principal assignment of error challenges the sufficiency of the testimony to support the verdict. No such challenge was interposed during the trial in the court below, by motion for a directed verdict or otherwise, and the rule is well settled that that question cannot be raised for the first time by motion for a new trial or in the appellate court. Bilboa v. United States (C. C. A.) 287 F. 125. But, aside from this, the assignment is without merit. The representation that the 3,000 drilling shares placed in escrow would only be released and sold as the drilling progressed under the drilling contract, was clearly established. That representation was a material one, and its falsity was all but confessed. The plaintiffs in error sold other shares not placed in escrow to an amount far in excess of the requirements of the drilling contract, and even far in excess of the total issue authorized, and converted large sums to their own use, in the face of the provision in the trust agreement that they should receive no compensation for their services until oil was actually produced, and that the proceeds of all shares sold and not used in drilling should remain the property of the shareholders. In fine, the jury was warranted in finding that the whole scheme was conceived in fraud and was consummated through the misuse of the mail.

The exclusion of testimony as to the reasonable cost of drilling a well to the depth of 5,505 feet is next assigned as error. When this testimony was offered, the court stated that no such question was involved in the case and there the matter ended. We think the statement of the court was correct, but in any event there was no exception to the ruling complained of.

In support of a motion for a new trial the plaintiffs in error filed an affidavit of one of the jurors stating that the failure of the plaintiffs in error to testify in their own behalf was discussed by the jurors during their deliberations. The incompetency of such an affidavit is at once apparent. McDonald v. Pless, 206 F. 263, 124 C. C. A. 131; Hyde v. United States, 225 U.S. 347, 354, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614.

Lastly, an objection is urged to the form of the verdict. A general verdict of guilty under an indictment containing several counts of necessity imports a conviction as to each count. Claassen v. United States, 142 U.S. 140, 146, 12 S. Ct. 169, 35 L. Ed. 966; Ballew v. United States, 160 U.S. 187, 197, 16 S. Ct. 263, 40 L. Ed. 388.

The judgment of the court below is affirmed.