Parmenter v. United States

• Decision Date: 11 December 1924
• Docket Number: No. 4076-4079.,4076-4079.
• Citation: 2 F.2d 945
• Parties: PARMENTER v. UNITED STATES, and three other cases.
• Court: U.S. Court of Appeals — Sixth Circuit

2 F.2d 945 (1924)

PARMENTER v. UNITED STATES, and three other cases.

Nos. 4076-4079.

Circuit Court of Appeals, Sixth Circuit.

December 11, 1924.

Wm. F. Connolly, Wm. Henry Gallagher, and Robert T. Speed, all of Detroit, Mich. (Connolly & Henderson, of Detroit, Mich., on the brief), for plaintiffs in error.

Delos G. Smith, U. S. Atty., of Detroit, Mich.

Before DENISON, MACK, and KNAPPEN, Circuit Judges.

DENISON, Circuit Judge.

The undisputed testimony shows this state of facts: Parmenter, Baker, and Corrigan were deputy sheriffs at Detroit, particularly engaged in enforcing the liquor law. Quick was a farmer living near the river below Detroit. Woods lived in Canada across the river. Quick and Woods had been engaged in various bootlegging transactions, transferring liquor from Canada to the United States. On the night of May 28th, Woods and a number of Canadian associates, with two boats, brought across about 1,400 quarts of whisky, and landed it on the American side a few miles below Detroit. They expected to be met by one Stoddard, who, they thought, would then purchase and pay for it. Instead, they were met by Quick and the three deputy sheriffs and their associates who had been notified by Quick. Woods and the Canadians were arrested and the whisky removed to a nearby farm house. All but 142 quarts immediately disappeared. Woods and all the Canadians, after some detention, were allowed to go home and to take their boats. Four days later a written report of the transaction, signed by two of the deputies was filed with the sheriff, which stated only that the amount seized was 142 quarts and that the boats escaped.

It is the theory of the government's proof that the prospect of sale held out to Woods was a fiction instigated by Quick, who wished to "frame" Woods on account of a previous transaction between them; that it was the joint plan of Quick and the three officers and their associates, to get the liquor brought across on such a pretended sale, to have the officers seize it and arrest Woods and associates, to have it at once taken away and concealed by the officers and their associates in the conspiracy and to have it later sold and the profits divided among the conspirators on the American side of the river, including the three officers and Quick. There was substantial testimony supporting this theory, including that of two of the defendants (not plaintiffs in error) charged to be among the conspirators, who, after testifying to the contrary, went voluntarily to the District Judge, confessed perjury, went back upon the stand, and gave testimony supporting the government's theory.

This situation developed upon the trial of these four defendants and several others, under an indictment with three counts. The first charged a conspiracy to import intoxicating liquors into the United States; the second, a conspiracy to transport such liquor within the United States; and the third, the actual transportation, from the point of landing on the river bank to a farmhouse 300 yards away. Some of the defendants pleaded guilty, and others, these four among them, were convicted upon counts 1 and 2. Upon the first count the sentences were: Quick and Corrigan each two years and $2,000 fine; Baker and Parmenter, each two years and $10,000. Upon the second count, Corrigan one year and $1,000 fine, Quick two years and $10,000. The imprisonment sentences on the second count were expressly made cumulative, as to those in the first.

We find only four of the allegations of error which need attention:

1. It is said that as between the first and second counts, there were double prosecution and double punishment. The first count, with perhaps unnecessary elaboration, alleges a conspiracy to import by bringing "from the Dominion of Canada, across the Detroit river into the United States, at Trenton in said county and district, by vessels and landing the same at Trenton in said county." In strictness, this may be analyzed into a plan for importing at the international boundary line in the middle of the river, and a plan for transporting from that line to the American bank. The second count also with detail charges a plan for possession at the river bank and for transportation therefrom to the farmhouse 300 yards away of the same liquor. The argument for plaintiffs in error is that there is no legitimate distinction between the transporting done on the river and that done on the land because there was a single journey from the boundary line to the farmhouse; that a single transportation cannot be split up into parts to make separate offenses; that since a part of this journey was covered by the first count there could be no separate proceeding by the second count based upon the remainder of the same journey.

This contention is, at least, ingenious, but we think it...