Old Monastery Co. v. United States, 5322.
Decision Date | 13 February 1945 |
Docket Number | No. 5322.,5322. |
Citation | 147 F.2d 905 |
Parties | OLD MONASTERY CO. v. UNITED STATES. |
Court | U.S. Court of Appeals — Fourth Circuit |
Irwin Geiger, of Washington, D. C., for appellant.
O. H. Doyle, U. S. Atty., of Greenville, S. C. (Marion Moise, Enforcement Atty., OPA, and Sp. Asst. to the U. S. Atty., of Columbia, S. C., on the brief), for appellee.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
The Old Monastery Company, a corporation (hereinafter called Monastery), Harold Ostrow, Walter Renken and Joseph Davis were indicted by a grand jury of the United States District Court for the Western District of South Carolina for a conspiracy to violate Section 4(a) of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix § 904(a), and Maximum Price Regulations Numbers 193 and 445. Ostrow and Davis entered each a plea of nolo contendere, the charge was dismissed as to Renken. The case proceeded to trial with a jury against Monastery alone, the jury brought in a verdict of guilty, and Monastery was duly sentenced by the District Court. Monastery has appealed.
Monastery's first point is that the indictment is defective because "it wholly omits to plead any facts showing the plan and scheme by which the alleged conspiracy was to be consummated." This point, we think, is entirely lacking in merit.
True it is that a sale, unlike many acts such as smuggling and counterfeiting, is not in itself illegal. But the indictment does not stop in alleging a mere conspiracy to effectuate a sale; it goes further in alleging a conspiracy of a number of people "that they would in the course of trade or business buy, sell and deliver packaged distilled spirits at prices in excess of the maximum price established by said Maximum Price Regulations." The indictment also sets out in detail various overt acts, with place and date, committed within the Western District of South Carolina by parties to the conspiracy. There can be no real doubt that Monastery was fully and fairly apprised by the indictment of the specific charge against it. It is well settled, too, that in conspiracy cases the details need not be described with the same particularity as is required in charging the commission of a substantive offense. Hill v. United States, 4 Cir., 42 F.2d 812; Center v. United States, 4 Cir., 96 F.2d 127; United States v. Renken, D.C., 55 F.Supp. 1, 5.
Monastery next complains of the refusal of the District Court, on the score of lack of jurisdiction, to pass upon the question of the invalidity of the Regulation involved. We think this ruling was correct.
In United States v. Chicco and Stauss, (decided August 31, 1944), 59 F.Supp. 211, District Judge Timmerman said: "Regardless of whether the exact phase of the point now under consideration was before the Supreme Court in the Yakus case, if the reasoning therein employed and rules of construction therein stated are basic and correctly reflect the views of the majority of the court, as apparently they do, it follows as an inevitable conclusion that rules or orders promulgated by the Administrator, pursuant to the provisions of the Act, are not subject to attack in the district courts of the United States, whether the case used as the occasion for the attack be civil or criminal."
See Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660. And our accused here, under such a ruling, is not without remedy. An amendment to the Emergency Price Control Act, found in Section 107 of the Stabilization Act of 1944, 50 U.S.C. A.Appendix § 924(e), provides:
We cannot agree with Monastery's broad contention that the repeal of the Eighteenth Amendment to the Constitution of the United States utterly deprived the Congress of power to legislate in the field of intoxicating liquors. In Washington Brewers Institute v. United States, 9 Cir., 137 F.2d 964, 967, Circuit Judge Healy aptly said:
Equally strong are the words of Circuit Judge Simons in Jatros v. Bowles, 6 Cir., 143 F.2d 453, 455: (Italics ours.)
And see, also, Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194; Jameson & Co. v. Morgenthau, 307 U.S. 171, 59 S.Ct. 804, 83 L.Ed. 1189; Hayes v. United States, 10 Cir., 112 F.2d 417; Schlitz Brewing Co. v. Johnson, 6 Cir., 123 F.2d 1016; United States v. Colorado Wholesale Wine & Liquors Association, D.C., 47 F.Supp. 160.
Monastery next contends that "the conspiracy here charged required participation in the consummated substantive offense of the same participants and hence the conviction for conspiracy to commit the identical substantive offense is erroneous." This principle, we think, is inapplicable to the case before us. Usually the principle is applied to situations in which the concurrence (or agreement) and the substantive crime (or consummated offense) are so intimately and so closely connected that they in reality constitute a single act. Adultery is frequently cited as probably the clearest of such cases. See 2 Wharton on Criminal Law, § 339; Clark and Marshall on the Law of Crimes, 2d Ed., § 134, p. 195. See, also, Shannon v. Commonwealth, 14 Pa. 226; Miles v. State, 58 Ala. 390; United States v. Katz, 271 U. S. 354, 46 S.Ct. 513, 70 L.Ed. 986; United States v. Zeuli, 2 Cir., 137 F.2d 845; United States v. Dietrich, C.C.Neb., 126 F. 664.
But, as Circuit Judge Parker pointed out, this principle is to be confined to very narrow limits. Lisansky v. United States, 4 Cir., 31 F.2d...
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