Whiskey Cases United States v. Ford United States v. Ford United States v. One Still United States v. Fifty Barrels of Distilled Spirits United States v. Three Hundred and Nineteen Barrels of Whiskey United States v. Four Hundred Barrels of Distilled Spirits United States v. Four Hundred Packages of Distilled Spirits United States v. One Hundred and Fifty Barrels of Whiskey

• Decision Date: 01 October 1878
• Citation: 99 U.S. 594,25 L.Ed. 399
• Parties: WHISKEY CASES. UNITED STATES v. FORD; UNITED STATES v. FORD; UNITED STATES v. ONE STILL; UNITED STATES v. FIFTY BARRELS OF DISTILLED SPIRITS; UNITED STATES v. THREE HUNDRED AND NINETEEN BARRELS OF WHISKEY; UNITED STATES v. FOUR HUNDRED BARRELS OF DISTILLED SPIRITS; UNITED STATES v. FOUR HUNDRED PACKAGES OF DISTILLED SPIRITS; UNITED STATES v. ONE HUNDRED AND FIFTY BARRELS OF WHISKEY
• Court: U.S. Supreme Court

99 U.S. 594

25 L.Ed. 399

WHISKEY CASES.

UNITED STATES

v. FORD;

UNITED STATES

v. FORD;

UNITED STATES

v. ONE STILL;

UNITED STATES

v. FIFTY BARRELS OF DISTILLED SPIRITS;

UNITED STATES

v. THREE HUNDRED AND NINETEEN BARRELS OF WHISKEY;

UNITED STATES

v. FOUR HUNDRED BARRELS OF DISTILLED SPIRITS;

UNITED STATES

v. FOUR HUNDRED PACKAGES OF DISTILLED SPIRITS;

UNITED STATES

v. ONE HUNDRED AND FIFTY BARRELS OF WHISKEY.

October Term, 1878

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

Page 594-Continued

The first two of these cases were actions of debt instituted in the Circuit Court to recover the penalties imposed by sects. 3296 and 3452 of the Revised Statutes. The remaining cases were instituted in the District Court by way of information under sects. 3281, 3299, 3453, and 3456. The defence in the first case, and it is substantially the same in all, consists of the general issue and the following special plea:——

'And for a further plea in this behalf said defendants say actio non, because they say that heretofore, to wit, on the twenty-seventh day of December, A.D. 1875, at Chicago, at, to wit, said northern district of Illinois, the said plaintiffs and the said defendants entered into an agreement by which it was, among other things, agreed that if the said defendants would testify on behalf of the plaintiffs frankly and truthfully, when required, in reference to a conspiracy among certain government officials in the revenue service and other parties, then known to exist, whereby the honest manufacture of spirits and payment of the tax had been rendered practically impossible, and should plead guilty to one count in an indictment then pending against them in the District Court, in and for said northern district, and should withdraw their pleas in a certain condemnation case then pending against them in said District Court, the said plaintiffs would recall any and all assessments under the internal-revenue laws then made against said defendants, and that no more assessments under said law should be made against said defendants, and that no proceedings other than said condemnation case should be prosecuted against said defendants, and that no new proceedings should be commenced against said defendants on account of transactions then past; and these defendants aver that they and each of them have fully performed said contract on their part, and defendants further aver that this suit is a proceeding other than said condemnation case, and that this suit is for the recovery upon transactions prior to the entering into said agreement; and this the said defendants are ready to verify.'

The United States demurred to the special plea. The demurrer was overruled, and judgment having been rendered for the defendants, and the judgment of the District Court affirmed. the United States brought the cases here.

The Attorney-General for the United States.

Mr. Edward Jussen and Mr. Charles H. Reed, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

Accomplices in guilt, not previously convicted of an infamous crime, when separately tried are competent witnesses for or against each other; and the universal usage is that such a party, if called and examined by the public prosecutor on the trial of his associates in guilt, will not be prosecuted for the same offence, provided it appears that he acted in good faith and that he testified fully and fairly.

Where the case is not within any statute, the general rule is that if an accomplice, when examined as a witness by the public prosecutor, discloses fully and fairly the guilt of himself and his associates, he will not be prosecuted for the offence disclosed; but it is equally clear that he cannot by law plead such facts in bar of any indictment against him, nor avail himself of it upon his trial, for it is merely an equitable title to the mercy of the executive, subject to the conditions before stated, and can only come before the court by way of application to put off the trial in order to give the prisoner time to apply to the executive for that purpose. Rex v. Rudd, 1 Cowp. 331.

Sufficient appears to show that the following are the material proceedings in the several cases: 1. That the first two were actions of debt commenced in the Circuit Court to recover the double internal-revenue tax imposed, as fully set forth in the respective declarations. 2. That the other six cases are informations filed in the District Court to forfeit the properties therein described for acts done in violation of the internal-revenue laws.

Service was made in the first two cases, and the defendants appeared and pleaded the general issue and the special plea set forth in the transcript. Issue was joined upon the first plea, and the United States demurred to the special plea. Hearing was had, and the court overruled the demurrer and gave judgment for the defendants. Like defences in the form of answers or pleas were filed in the other six cases commenced in the District Court, to which the United States demurred; but the District Court overruled the demurrers, and finally rendered judgment in each case for the defendants. Prompt steps were taken by the district attorney to remove the cases into the Circuit Court, where the respective judgments rendered by the District Court were affirmed.

Suffice it to say in this connection, without entering into detail, that the United States sued out a writ of error in each case and removed the same into this court. Both parties agree that the questions presented for decision are the same in each case, in which the court here fully concurs.

Two errors are assigned as causes for reversing the judgment, which present very clearly the matters in controversy as discussed at the bar. 1. That the plea or answer set up as defence is bad because it is too general and does not set forth the supposed agreement in traversable form. When filed, the first assignment of error also objected to the plea or answer that it did not designate the officer who made the alleged agreement which was plainly a valid objection to it; but that was obviated at the argument, it being conceded by the United States that the plea or answer should be understood as alleging that the supposed agreement was made by the district attorney. 2. That the plea or answer is bad because the officer representing the government in these prosecutions had no authority to make the agreement pleaded, and that the court cannot enforce it, as it is void.

As amended, it requires no argument to show that the plea or answer cannot be understood as alleging that the President was a party to any such agreement, as the distinct allegation is that it was made by the district attorney; nor could any such implication have arisen even if the pleading had not been amended, as it is settled law that suits of the kind to recover municipal forfeitures must be prosecuted in the subordinate courts by the district attorney, and in this court, when brought here by appeal or writ of error, by the Attorney-General. Confiscation Cases, 7 Wall. 454. Suppose the plea to be amended as stipulated at the argument, the first question is, whether as amended it sets up a good defence to the several actions. Taken in that view, it alleges in substance and effect that the district attorney promised the defendants that if they would testify in behalf of the United States frankly and truthfully when required, in reference to a conspiracy among certain government officials in the internal-revenue service, and other parties then known to exist, whereby the honest manufacture of distilled spirits and the collection of the tax thereon had been rendered practically impossible, and would plead guilty to one count in an indictment then pending against them in said District Court, and would withdraw their pleas in certain condemnation cases then pending against their property in said District Court, for the purpose only of insuring their good faith in so testifying on behalf of the United States, then the United States would recally any and all assessments under the internal-revenue law made against them, and that no more assessments under said law should be made against them, that no more proceedings against them should be commenced on account of violations of the internal-revenue laws then passed, and that no penalties or forfeitures should in any manner be enforced or recovered against them or their property, that all suits for penalties and for forfeitures then pending against them and their property should be dismissed, and that full and complete indemnity should be granted to them as the said claimants.

Complete performance on their part is alleged by the claimants, and they allege that the pending suits are for the condemnation and confiscation of their property, which was seized by the United States on the ground of the alleged violation of the internal-revenue law, prior to entering into the said agreement. Assessments made against the claimants or their property are to be recalled, and they and their property are to be free of internal-revenue taxation. Proceedings pending against them for violations of the internal-revenue laws are to be dismissed and no more are to be instituted, and the claimants are promised full and complete indemnity, civil and criminal, if they will consent to testify.

Considering the scope and comprehensive character of the supposed agreement, it is not strange that the district attorney deemed it proper to demur to the plea. He took two objections to it; but the court will examine the second one first, as if that is sustained, the other will become immaterial.

Waiving for the present the question whether the district attorney may contract with an accomplice of an accused person on trial, that if he will testify in the case his taxes shall be abated, or that he and his property shall be exempt from internal-revenue taxation, the court will consider in...