Dowdy v. United States

• Decision Date: 13 January 1931
• Docket Number: No. 3028,3038.,3028
• Citation: 46 F.2d 417
• Parties: DOWDY v. UNITED STATES. FUNK v. SAME.
• Court: U.S. Court of Appeals — Fourth Circuit

46 F.2d 417 (1931)

DOWDY v. UNITED STATES.

FUNK v. SAME.

Nos. 3028, 3038.

Circuit Court of Appeals, Fourth Circuit.

January 13, 1931.

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John W. Carter, Jr., of Danville, Va., and Julius C. Smith, of Greensboro, N. C. (Brooks, Parker, Smith & Wharton, of Greensboro, N. C., and Carter & Talbott, of Danville, Va., on the brief), for appellant Dowdy.

Charles A. Hammer, of Harrisonburg, Va., for appellant Funk.

E. L. Gavin, U. S. Atty., of Greensboro, N. C., for the United States.

Before NORTHCOTT, Circuit Judge, and GRONER and ERNEST F. COCHRAN, District Judges.

ERNEST F. COCHRAN, District Judge.

The appellants (hereinafter styled the defendants) were convicted under an indictment charging them with conspiracy, under section 37, Criminal Code (U. S. Code, title 18, § 88 18 USCA § 88), to violate the prohibition law in a number of particulars. They have appealed separately, but their appeals were heard together in this court, and as some of the grounds of appeal are common, they will be considered together.

The record presents a mass of testimony, and there are fifteen assignments of error in the Dowdy case, and thirty-two in the Funk case. It would serve no useful purpose to set forth a full history and statement of the case in all its various details, or to consider and discuss each assignment of error separately. The important assignments of error will be considered in groups, together with a statement of such parts of the evidence as may be necessary to a proper understanding of the point involved.

Both defendants have assigned error in the refusal of the district judge to strike out certain portions of the indictment. No point has been made in this court that this is not the proper way to test the sufficiency of an indictment; but we are unwilling, by passing over the matter silently, to countenance apparently this practice. The sufficiency of an indictment may be tested by a motion to quash or by a demurrer; but neither of those methods may be directed to the insufficiency of a portion only of the indictment. The indictment must stand or fall, when thus attacked, as a whole. Nor is a motion to strike out a portion of the indictment a proper procedure. The Supreme Court has held that the court cannot strike out a portion of an indictment. Ex parte Bain, 121 U. S. 1, 7 S. Ct. 781, 30 L. Ed. 849. A part of an indictment may be treated as surplusage, and rejected; but it may not be stricken out. Ford v. U. S., 273 U. S. 593, 602, 47 S. Ct. 531, 71 L. Ed. 793. If a portion of the indictment is not sustained by the evidence, that part of the charge may be withdrawn from the consideration of the jury on that ground. Salinger v. U. S., 272 U. S. 542, 548, 47 S. Ct. 173, 71 L. Ed. 398. See also Goto v. Lane, 265 U. S. 393, 402, 44 S. Ct. 525, 68 L. Ed. 1070.

In the present case, the district judge did not strike out any portion of the indictment. When the district attorney conceded that certain overt acts alleged in the indictment could not be sustained, he withdrew those portions from the consideration of the jury. When it developed, upon the evidence, that certain other overt acts were not sustained, he withdrew those acts from their consideration. A number of other overt acts, however, he refused to withdraw from their consideration, and the defendants have assigned error in that respect. Treating their motion to strike those overt acts from the indictment as practically a motion to withdraw them from the consideration of the jury, we have considered the assignments of error based thereon and find them without merit. They are therefore overruled.

Both defendants, however, presented certain objections to the indictment by motions to quash. The indictment is very voluminous. It alleges, in substance, that the defendants and one Charlie Martin (the indictment reciting that Martin was not indicted for the reason that he was used as a witness) and other unknown persons formed a conspiracy in the Middle District of North Carolina to manufacture, possess, transport, barter, sell, furnish, and deliver intoxicating liquor in that district and in other states and places unknown. It was further alleged that Dowdy and Martin were to manufacture, possess, transport, barter, sell, furnish, and deliver intoxicating liquor at wholesale and retail, and that Funk (who was a prohibition officer) should aid and assist them by keeping them informed as to the movements of federal agents, warning them, acting as their adviser, and refraining from arresting them or any of their agents; and that he was to be paid by Dowdy and Martin for his services. The indictment then sets forth twenty-six overt acts alleged to be in furtherance of the conspiracy and to effect its object. A number of overt acts are alleged to have been committed in the Middle District of North Carolina and others in other states and places.

It is first objected that the indictment sets forth several independent and distinct conspiracies. This objection cannot be sustained. The indictment sets forth one conspiracy formed in the Middle District of North Carolina with a number of overt acts to effect the object of that conspiracy. On the face of the indictment, there is nothing to show that there were several distinct conspiracies.

The fact that the conspiracy contemplated numerous violations of law as its object does not make the indictment duplicitous. The gist of the offense is the conspiracy, and it is single, though its object is to commit a number of crimes. Frohwerk v. U. S., 249 U. S. 204, 209, 210, 39 S. Ct. 249, 63 L. Ed. 561; Ford v. U. S., 273 U. S. 593, 602, 47 S. Ct. 531, 71 L. Ed. 793; Norton v. U. S. (C. C. A. 5th) 295 F. 136; Rudner v. U. S. (C. C. A. 6th) 281 F. 516; Remus v. U. S. (C. C. A. 6th) 291 F. 501; Anderson v. U. S. (C. C. A. 8th) 273 F. 20.

It appears also that some objection was made to the indictment on the ground that the venue was not properly laid; but it is well settled that in a conspiracy charge the venue may be laid either in the district where the conspiracy was actually formed or in any district where an overt act was done by any one of the conspirators in furtherance of the common design. Hyde v. U. S., 225 U. S. 347, 365, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; Hyde v. Shine, 199 U. S. 62, 76, 25 S. Ct. 760, 50 L. Ed. 90.

Other objections were made to the indictment, but it is not necessary to discuss them. It is sufficient to say that we have carefully considered them and that there is no merit in them whatever. All the objections, therefore, to the sufficiency of the indictment are overruled.

Both defendants have assigned error to the ruling of the District Court in refusing to permit Mrs. Funk, the wife of the defendant Funk, to testify. Before the defendant Funk rested his case, he called her as a witness on his own behalf, and the court ruled that she was not competent, and he thereupon excepted to the ruling and rested his case. The defendant Dowdy then called Mrs. Funk as a witness, and the court inquired whether she could testify to anything that was not in behalf of her husband; and Dowdy's attorney thereupon said that it was in defence of her husband as well as of Dowdy. The court thereupon ruled that she was not a competent witness for Dowdy, to which Dowdy excepted.

In the federal courts, the rule has prevailed for many years that in a criminal trial, the wife of a defendant is not a competent witness in his behalf. Jin Fuey Moy v. U. S., 254 U. S. 189, 41 S. Ct. 98, 65 L. Ed. 214; Hendrix v. U. S., 219 U. S. 79, 31 S. Ct. 193, 55 L. Ed. 102; Barton v. U. S. (C. C. A. 4th) 25 F.(2d) 967; Fisher v. U. S. (C. C. A. 4th) 32 F.(2d) 602, 604; Krashowitz v. U. S. (C. C. A. 4th) 282 F. 599.

The federal courts have also held that where two or more defendants are jointly indicted and jointly tried, the wife of one of them is not a competent witness for a codefendant of her husband. Israel v. U. S. (C. C. A. 6th) 3 F.(2d) 743, 745; Haddad v. U. S. (C. C. A. 6th) 294 F. 536; Talbott v. U. S. (C. C. A. 5th) 208 F. 144; U. S. v. Davidson (D. C.) 285 F. 661.

Certainly, where the testimony of a wife for a codefendant will inure to the benefit of her husband, as was conceded to be the case here, she is not a competent witness. Israel v. U. S., supra.

It has been very earnestly argued, however, that the decisions of the Supreme Court in the Jin Fuey Moy and Hendrix Cases, supra, are not to be taken as ruling positively that the wife is not a competent witness, in view of the decision of that court in the case of Rosen v. U. S., 245 U. S. 467, 38 S. Ct. 148, 62 L. Ed. 406. Our attention is also called to the case of Rendleman v. U. S. (C. C. A. 9th) 18 F.(2d) 27, which holds that a wife is not incompetent to testify in behalf of her husband in a criminal case. It is to be observed that the Supreme Court decision in the Rosen Case was rendered before the decision in the Jin Fuey Moy Case. After due consideration, we are of opinion that the Supreme Court has definitely held that a wife is not a competent witness in such cases. This court has consistently followed these decisions and feels bound to observe the rule so long deemed settled, until there is a decision of the Supreme Court to the contrary.

Compare Tinsley et al. v. U. S. (C. C. A. 8th) 43 F.(2d) 890.

The defendant Dowdy assigns error to the refusal of the district judge to grant him a severance. The granting of a severance where two or more are jointly indicted rests in the sound discretion of the trial judge. The defendant Dowdy, however, while conceding the general rule, argues that in this particular case a severance should have been granted, in order that Mrs. Funk might testify in his behalf. The motion for a severance was not based upon that ground, and no ruling in that respect was made by the trial judge; and this assignment of error might very well be overruled for that reason alone. But in order to avoid...