315 U.S. 60 (1942), 30, Glasser v. United States

Docket Nº:No. 30
Citation:315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680
Party Name:Glasser v. United States
Case Date:January 19, 1942
Court:United States Supreme Court

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315 U.S. 60 (1942)

62 S.Ct. 457, 86 L.Ed. 680



United States

No. 30

United States Supreme Court

Jan. 19, 1942

Argued November 13, 14, 1941




1. Jud.Code § 275 provides that jurors in a federal court shall have the qualifications of jurors in the highest court of the State. Acts of the State of Illinois providing for jury service by women became effective before a grand jury in a federal court in that State was drawn from a box from which the names of women had been excluded. Under the state legislation, the making of state lists including women could be delayed for some time later.

Held, that the jury was not illegally constituted, in view of the short time

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elapsed since the state law came in force, and the absence of any showing that women's names had appeared on the state jury lists in the counties comprising the federal district. P. 64.

2. The record in this case shows adequately, though informally, that the indictment was returned by the grand jury in open court. P. 65.

3. An indictment which is sufficiently definite to inform the defendants of the charges against them and shows certainty to a common intent, is good against demurrer. P. 66.

4. Depriving the United States of lawful governmental functions by dishonest means is a "defrauding" within the meaning of § 37 of the Criminal Code. P. 66.

5. A charge of conspiracy to defraud the United States of lawful governmental functions by bribery of a Government officer is distinct from a charge of bribery or of conspiracy to commit bribery. P. 66.

6. Error which might be overlooked as harmless where the case is strong against the accused may be ground for reversal where the question of guilt or innocence is close. P. 67.

7. A defendant in a conspiracy case is deprived of the assistance of counsel, contrary to the Sixth Amendment, where, over his objection, the court appoints his counsel to represent also a codefendant, where this is done with notice to the judge that their interests may be inconsistent, and where the counsel's defense of the first defendant is less effective than it might have been if he had represented that defendant alone. P. 76.

8. Every reasonable presumption is indulged against a waiver of fundamental rights such as the right of the accused to have the full and untrammeled assistance of counsel in the trial of a criminal case. P. 70.

9. The fact that a defendant in a criminal case is an experienced lawyer may be a factor in determining whether he waived his right to assistance of counsel, but it is not conclusive. P. 70.

10. The trial judge should protect the right of an accused to have the assistance of counsel. P. 71.

11. The right to have the assistance of counsel is too fundamental to be made to depend upon nice calculations by courts of the degree of prejudice arising from its denial. P. 76.

12. The declarations of a conspirator are not admissible against an alleged coconspirator, who was not present when they were made, unless there is proof aliunde connecting the latter with the conspiracy. P. 74.

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13. Person connected as conspirators cannot have a new trial because of error prejudicial to a codefendant but not to themselves. P. 76.

14. A verdict of conviction must be sustained if, taking the new most favorable to the Government, there is substantial evidence to support it. P. 80.

15. Participation in a criminal conspiracy may be inferred from circumstance. P. 80.

16. Defendants in a criminal case cannot complain of error in the introduction of reports a to which, when they were admitted in evidence, the trial judge informed the jury that they were admitted against another defendant only. P. 81.

17. A district judge conducting jury trial in a criminal case has a sound discretion to interrogate witnesses and to limit their cross-examination. P. 82.

18. Acts of the trial judge, complained of as lacking impartiality, were not such as to prejudice substantial rights of defendants. P. 83.

19. Acts of alleged misconduct of the prosecuting attorney -- held not such as to call for reversal of convictions. P. 83.

20. A motion for a new trial in a criminal case upon the ground that the jury was illegally constituted must be supported by the introduction or offer of distinct evidence; a formal affidavit, in the absence of a stipulation that it may be accepted as proof, is not enough, although it be uncontroverted. P. 87.

116 F.2d 690, reversed in part; affirmed in part.

CERTIORARI, 313 U.S. 551, in three cases, to review a judgment sustaining convictions for conspiracy.

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MURPHY, J., lead opinion

MR. JUSTICE MURPHY delivered the opinion of the Court.

Petitioners, together with Anthony Horton and Louis Kaplan, were found guilty upon an indictment charging them with a conspiracy to defraud the United States, under § 37 of the Criminal Code (R.S. § 5440; 18 U.S.C. 88).1 Judgment was entered on the verdict and Glasser, Kretaske and Kaplan were sentenced to imprisonment for a term of 14 months. Roth was ordered to pay a fine of $500, and Horton was placed on probation. On appeal, the convictions of Glasser, Kretaske and Roth were affirmed.2 We brought the case here because of the [62 S.Ct. 462] important constitutional issues involved. 313 U.S. 551.

Glasser was the assistant United States attorney in charge of liquor cases in the Northern District of Illinois from about March, 1935, to April, 1939. Kretaske was an assistant United States attorney in the same district from October, 1934, until April, 1937. He assisted Glasser in the prosecution of liquor cases. After his resignation, he entered private practice in Chicago. Roth was an attorney in private practice. Kaplan was an automobile dealer reputed to be engaged in the illicit alcohol traffic around Chicago. Horton was a professional bondsman.

The indictment was originally in two counts, but only the second survives here, as the Government elected to

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proceed on that count alone at the close of its case. That count, after alleging that, during certain periods, Glasser and Kretaske were assistant United States attorneys for the Northern District of Illinois, employed to prosecute all delinquents for crimes and offenses cognizable under the authority of the United States, and, more particularly, violations of the federal internal revenue laws relating to liquor, charged in substance that the defendants conspired to

defraud the United States of and concerning its governmental function to be honestly, faithfully and dutifully represented in the courts of the United States

in such matters "free from corruption, improper influence, dishonesty, or fraud." The means by which the conspiracy was to be accomplished was alleged to be by the defendants' soliciting certain persons charged, or about to be charged, with violating the laws of the United States, to promise or cause to be promised certain sums to be paid or pledged to the defendants, to be used to corrupt and influence the defendants Glasser and Kretaske, and the defendant Glasser alone, in the performance of their and his official duties.

All the defendants filed a motion to quash the indictment on the grounds (a) that the grand jury was illegally constituted because women were excluded therefrom, and (b) that the indictment was not properly returned in open court. Glasser, Kretaske and Roth also filed demurrers to the indictment. The motion to quash and the demurrers were overruled, and petitioners here renew their objections.

On July 1, 1939, two Acts of the State of Illinois providing for women jurors became effective.3 Section 275 of the Judicial Code (28 U.S.C. § 411) provides in substance that jurors in a federal court are to have the qualifications of jurors in the highest court of the State. Petitioners

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contend that the grand jury, composed entirely of men, and summoned on August 25, 1939, was illegally constituted because, at the time it was drawn, Illinois law required state jury lists to contain the names of women. However, in 17 of the 18 counties comprising the Northern District of Illinois, the county boards could wait until September, 1939, to include women on their jury lists.4 Of course, for women to serve as federal jurors in Illinois, it is not necessary that their names appear on a county list, but we are of opinion that, in view of the short time elapsing between the effective date of the Illinois Acts and the summoning of the grand jury, it was not error to omit the names of women from federal jury lists where it was not shown that women's names had yet appeared on the state jury lists.

The record here adequately disposes of petitioners' contention that there is no showing that the indictment was returned in open court by the grand jury. It contains a placitum in regular form which recites the convening of a regular term of the [62 S.Ct. 463] District Court for the Eastern Division of the Northern District of Illinois, "on the first Monday of September [1939] (it being the twenty-ninth day of September the indictment was filed)," and discloses the presence of the judges of that court, the marshal and the clerk. The indictment bears the notation: "A true bill, George A. Hancock, Foreman", and the endorsement: "Filed in open court this 29th day of Sept.,

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A.D.1939, Hoyt King, Clerk." Immediately following the indictment in the record is the motion-slip discharging the September grand jury, dated September 29, 1939, initialled by Judge Wilkerson and containing: "The Grand Jury return 4 Indictments in open Court. Added 10/30/39." The presence of this notation in the record is meaningless unless the indictment in this case is one of the four mentioned. The addition was obviously made to clarify the indorsement of the clerk so as to show clearly the return by the grand jury, and thus avert the...

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