Billingsley v. United States

• Citation: 274 F. 86
• Decision Date: 01 July 1921
• Docket Number: 3518-3520.
• Parties: BILLINGSLEY v. UNITED STATES (two cases). CLIFT v. SAME.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

274 F. 86

BILLINGSLEY v. UNITED STATES (two cases).

CLIFT v. SAME.

Nos. 3518-3520.

United States Court of Appeals, Sixth Circuit.

July 1, 1921

George Vandeveer and Wm. F. Connolly, both of Detroit, Mich. (Thomas F. Chawke and George F. Vandeveer, both of Detroit, Mich., on the briefs), for plaintiffs in error.

John E Kinnane, U.S. Atty., of Detroit, Mich. (Frank Murphy, Asst U.S. Atty., of Detroit, Mich., on the briefs), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DONAHUE Circuit Judge.

These cases were heard and submitted together. The plaintiffs in error were jointly indicted for causing whisky to be transported from the state of Ohio into the state of Michigan, in violation of the Reed Amendment. The indictment contained 23 separate counts, each count charging a like offense upon different days. The jury found the defendants not guilty on the first 18 counts, and guilty on the nineteenth, twentieth, twenty-first, twenty-second and twenty-third counts. By the express terms of the statute of Michigan prohibiting the manufacture and sale of liquor as a beverage, that law took effect May 1, 1918. All these offenses are charged to have been committed after that date.

The undisputed evidence offered on the part of the United States clearly established that these plaintiffs in error transported intoxicating liquors on or about the dates named in these five counts of the indictment, from the state of Ohio into the state of Michigan as a joint enterprise, in violation of the provisions of section 5 of the act of Congress approved March 3, 1917, known as the Reed Amendment (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 8739a 10387a-10387c). At the close of this evidence a motion was made on behalf of the defendants for a directed verdict, upon the theory that whatever the defendants had done in the way of actual transportation of this liquor was directly incited, procured, and brought about by the officers whose duty it was to prohibit such violation of the law. This motion was overruled by the court, and thereupon counsel for defendants made a statement to the jury on behalf of the defendants, a part of which is as follows:

'Supplementing what already appears on that subject, we shall show these defendants were engaged in running a grocery store-- one of them with another of the defendants as a copartner; the other, in his own individual right, Sherman Billingsley; that they had nothing to do with the liquor business, and that Chase came to them and invited them to go into this enterprise and they were merely the agents, and the court will instruct you when the proper time comes that if he caused this to be done, they are not guilty, if it was he who framed this plan as a means of getting them to engage in this business for the purpose of entrapment, then they are not guilty. This is our defense.'

Thereupon several witnesses were called and testified, on behalf of the defendants Sherman and Ora Billingsley, that Sherman Billingsley operated a grocery store on Brooklyn avenue in Detroit, and that Sherman and Ora Billingsley operated another grocery store on Porter street in that city; that they started in business about the 1st of July, and operated the same three or four months, and were frequently seen about these stores during July and August of that year.

Melvin Robinson, a witness introduced on behalf of the defendants, testified among other things that, during the time he was employed as a clerk in one of the stores operated by the Billingsleys, Sherman asked him to take a car to Toledo, and that he did drive a car to Toledo on Saturday night; that while he (Robinson) was in Toledo, Chase, who, while pretending to co-operate with the defendants was in fact an inspector of the Michigan state food and drug department, asked him to drive a Paige car full of whisky from Toledo back to Detroit, but that Ora Billingsley would not let him do this. Thereupon the government called in rebuttal a number of witnesses, who testified as to statements made by these defendants in reference to their connection with the unlawful transportation of liquor prior to any of the dates named in either count of this indictment. At the close of all the evidence the motion for a directed verdict was renewed by the defendants and overruled by the court.

The court charged the jury very fully in reference to entrapment, and in a summary of the charge on this subject said:

'If the state authorities and Mr. Chase had reasonable grounds to suspect defendants of causing whisky to be transported into the state of Michigan, and their action and that of Mr. Chase was taken in an effort to detect crime, and not to induce its commission, then such action was lawful, and if the defendants caused the whisky in question to be transported into Michigan, as charged in the indictment, they are guilty. On the other hand, if you find that the action of the state authorities and Mr. Chase, or either of them, was taken in bad faith and for the purpose of inducing and enticing the defendants to commit the offense charged, and that they in fact induced the original intent on the part of the defendants to cause whisky to be transported into this state, then you will find the defendants not guilty.'

'If, however, an intent and purpose to cause whisky to be transported into Michigan had been formed by the defendants before meeting and making arrangements with Mr. Chase, and defendants were already engaged in causing such transportation, then the action of Mr. Chase in apparently co-operating with them and aiding in such transportation, does not in any way relieve defendants of guilt, but such plan and work by Mr. Chase was proper and lawful as a means of obtaining evidence of the crime that was in fact being committed.'

The court prior to this had charged that--

'Public policy forbids that officers sworn to enforce laws should seek to have them violated, and that those whose duty it is to detect criminals should create them. So that, when an officer induces a person, who has had no intention of committing a crime, to violate the law, courts will not lend their aid in punishing the person thus lured into crime.'

This charge clearly states the law in relation to entrapment. U.S. v. Wight (D.C.) 38 F. 109; Woo Wai v. U.S., 223 F. 412, 137 C.C.A. 604; Sam Yick et al. v. U.S., 240 F. 60, 153 C.C.A. 96; Grimm v. U.S., 156 U.S. 604-610, 15 Sup.Ct. 470, 39 L.Ed. 550; People v. Liphardt, 105 Mich. 84, 62 N.W. 1022; Goode v. U.S., 159 U.S. 663-669, 16 Sup.Ct. 136, 40 L.Ed. 297; Goldman v. U.S. (C.C.A. 6) 220 F. 57-62, 135 C.C.A. 625. The evidence offered on the part of the United States tends to prove that the public officials of Michigan were acting in good faith; that they did suspect, and had reasonable ground to suspect, that these defendants were engaged in the unlawful transportation of liquor into the state of Michigan; and that these officials made no mistake in arriving at that conclusion.

The court did not err in refusing to compel the government to elect between the fifth and twenty-third counts of this indictment, because each of these counts charged an offense to have been committed on the same date. It is clear from the indictment itself that these counts charge separate offenses. The fifth count charges the unlawful transportation of three automobile loads of whisky in bottles, aggregating approximately 750 quarts of whisky. The twenty-third count charges the unlawful transportation into Michigan of five automobile loads of whisky in bottles, aggregating 1,389 quarts of whisky. Both of these offenses might have been committed on the same date, so that these counts do not on their face, and clearly not upon the evidence, relate to the same transaction.

Nor does the date in an indictment necessarily limit the...