Biemer v. United States, 4550

• Decision Date: 11 January 1932
• Docket Number: No. 4550,4585.,4550
• Citation: 54 F.2d 1045
• Parties: BIEMER v. UNITED STATES. EMRICK v. SAME.
• Court: U.S. Court of Appeals — Seventh Circuit

54 F.2d 1045 (1932)

BIEMER v. UNITED STATES.

EMRICK v. SAME.

Nos. 4550, 4585.

Circuit Court of Appeals, Seventh Circuit.

January 11, 1932.

Frederick W. Greene, of Fort Wayne, Ind., for appellant Biemer.

Frank A. Emrick, of Fort Wayne, Ind., for appellant Guy Emrick.

Oliver M. Loomis, George L. Rulison, and William B. Duff, all of South Bend, Ind., for the United States.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

EVANS, Circuit Judge.

Appellant Biemer, in cause No. 4550, and appellant Emrick, in cause No. 4585, were, along with twenty-seven others, charged by indictment with conspiring to violate the National Prohibition Act. Upon the trial, the jury returned a verdict of guilty against both of them, and each was given a penitentiary sentence. Each prosecuted a separate appeal, but both appeals were heard at the same time and will be disposed of in a single opinion.

Biemer's Appeal. — Appellant's assigned errors are the adverse rulings on two pleas in abatement, the motion for a new trial, the motion to strike the judgment on second plea in abatement, and the motion for directed verdict. The last-named assignment is grounded upon the alleged lack of evidence to support the conviction: First, because the evidence did not show there was a single conspiracy formed among the defendants named; and, second, because the evidence did not establish appellant's guilty participation in any conspiracy to violate this act.

Pleas in Abatement. — Appellant first challenged the sufficiency of the evidence presented to the grand jury to support the indictment. His motion to quash the indictment, however, was denied. He then filed a plea alleging that the indictment returned against him was voted without any competent evidence tending to prove his guilty participation in the conspiracy charged. The government demurred to this plea, and the demurrer was sustained. Appellant then filed a second plea in abatement, wherein it was stated that the assistant district attorney had, in substance, told the grand jurors in the jury room that Biemer was a bad man, had already been indicted, and was the biggest bootlegger in Fort Wayne. Evidence was received bearing upon this second plea in abatement, and there was a conflict in the testimony. The evidence amply sustained the court's finding that the alleged misconduct of the district attorney was not established. Moreover, this court cannot reverse because of erroneous rulings made on pleas in abatement such as are here involved. 28 US CA § 879; Luxenberg v. U. S. (C. C. A.) 45 F.(2d) 497.

Sufficiency of the Proof. — A careful examination of the evidence leads to the conclusion that a jury question was presented respecting Biemer's guilt. Three government witnesses gave testimony, which, if believed, established not only the existence of a conspiracy, but also appellant's guilty participation therein. These witnesses were not of a character which would inspire the greatest confidence in them, but they are corroborated in some details by appellant and his witnesses. True, the corroboration is on matters which in themselves do not establish guilt. They deal with meetings, the passing of money, the sale of liquor, and other facts, which make the statement of the government witness, Mary Lowe, that she obtained contact, through appellant, with one who was offering protection against prosecution for violation of the National Prohibition Act, (27 USCA) for a money consideration, rather plausible. The testimony, while conflicting, was such that a trier of fact, attempting to ascertain the truth and seeing and hearing the witnesses as they testified, could best determine where the truth lay. That is the reason appellate courts cannot review conflicting evidence to ascertain whether a jury reached a correct verdict.

Other assignments of error, we have considered, but they do not warrant a separate discussion.

Emrick's Appeal. — Appellant's only assigned error which necessitates consideration is the one which challenges the sufficiency of the evidence to sustain the charge set forth in the indictment. The attack is twofold: (a) A failure to show Emrick's guilty...