54 F.2d 1045 (7th Cir. 1932), 4550, Biemer v. United States

Docket Nº:4550, 4585.
Citation:54 F.2d 1045
Case Date:January 11, 1932
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1045

54 F.2d 1045 (7th Cir. 1932)







Nos. 4550, 4585.

United States 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...

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