273 U.S. 583 (1927), 944, Shields v. United States

Docket NºNo. 944
Citation273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787
Party NameShields v. United States
Case DateApril 11, 1927
CourtUnited States Supreme Court

Page 583

273 U.S. 583 (1927)

47 S.Ct. 478, 71 L.Ed. 787



United States

No. 944

United States Supreme Court

April 11, 1927

Petition submitted March 21, 1927



1. Where a respondent to a petition for certiorari advises the Court that he can find no ground for opposition, and therefore will file no opposing brief, and, if the writ issues, will submit the case without further hearing, the Court, upon granting the writ, may proceed at once to a decision of the merit. P. 587.

2. A request in chambers, joined in by the district attorney and counsel for defendant in a criminal case, that the jury be held in deliberation until they should agree upon a verdict should not be construed as authorizing the judge, out of court, and without the presence of the defendants or their counsel, to receive from the jury a verdict announcing their findings of agreement as to some and disagreement as to other defendants, and to return a written instruction that they also find guilty or not guilty those as to whom they had disagreed. P. 587.

3. When a jury has retired to consider its verdict, written instructions should not be sent without notice to the defendant or his counsel. P. 588.

17 F.2d 69 reversed.

Petition for a writ of certiorari to review a judgment of the circuit court of appeals affirming a conviction of conspiracy to violate the Prohibition Act. For reasons explained in the opinion, granting of the writ is accompanied by a disposition of the case under it.

TAFT, J., lead opinion

MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

The question here for review is the judgment of the Third Circuit Court of Appeals of February 14, 1927.

Page 584

A petition for certiorari was filed in this Court February 28, 1927, and is this day granted. For reasons to be explained, we proceed at once to consider the case on its merits.

Shields, the petitioner, was indicted and tried with eight or nine others for conspiracy to violate the Prohibition Act and also for direct violations of the Act. He was convicted of conspiracy and acquitted of the other charges. The case had been submitted to the jury February 12, 1926. Before the court convened the next morning, the jury still being out, counsel for the defendants and the assistant United States attorney in charge of the prosecution visited the trial judge in chambers and requested that the jury be held in deliberation until they should agree upon a verdict. Shortly after the opening of the court, the jury returned for additional instructions on the subject of entrapment, and, having received the same, retired for further deliberation. At 2:30 o'clock that afternoon, the jury again returned to court, in the absence of petitioner and his counsel, and reported that they could not agree. What instructions, if any, were then given the jury the record does not disclose. It appears that the jury again retired to deliberate, and, between 4:30 and 5 o'clock in the afternoon, sent from their jury room to the judge in chambers the following written communication:

We, the jury, find the defendants John G. Emmerling, Charles Lynch not guilty on all counts. E. W. Hardison, J. E. Hunter, and J. L. Simler guilty on all counts. Daniel J. Shields, Harry Widman, J. M. Gastman unable to agree.

Signed E. B. Milligan, Foreman.

The judge, from his chambers, sent back the following written reply:

The jury will have to find also whether Shields, Widman, and Gastman are guilty or not guilty.

F. P. Schoonmaker, Judge.

Page 585

These communications were not made in open court, and neither the petitioner Shields nor his counsel was present, nor were they advised of them. Shortly after, the jury returned in court and announced the following verdict:

We, the jury, find that the defendants John G. Emmerling, Charles Lynch, not guilty on all counts. E. W. Hardison, J. L. Simler, J. E. Hunter guilty on all four counts. Daniel J. Shields, Harry Widman, J. M. Gastman guilty on first count and recommended to mercy of court. Not guilty on 2d 3d and 4th counts, this 13th day of February, 1926.

E. B. Milligan, Foreman.

Upon this verdict, the court rendered its judgment,...

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