Allen v. United States

• Decision Date: 16 February 1925
• Docket Number: No. 3322.,3322.
• Citation: 4 F.2d 688
• Parties: ALLEN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

4 F.2d 688 (1924)

ALLEN et al. v. UNITED STATES.

No. 3322.

Circuit Court of Appeals, Seventh Circuit.

October 17, 1924.

Rehearing Denied February 16, 1925.

David D. Stansbury, of Chicago, Ill., for plaintiffs in error Blaz A. Lucas and others.

Stephen A. Clinehens, of Indianapolis, Ind., for plaintiffs in error Mary Allen and others.

James W. Noel, of Indianapolis, Ind., for plaintiffs in error Lewis E. Barnes and others.

C. B. Tinkham, of Hammond, Ind., for plaintiffs in error Bryan S. Narcovich and others.

Clair McTurnan, of Indianapolis, Ind., for plaintiff in error Clyde Hunter.

Moses B. Lairy, of Indianapolis, Ind., for plaintiff in error Roswell O. Johnson.

Alexander G. Cavins, of Indianapolis. Ind., for the United States.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

EVAN A. EVANS, Circuit Judge.

Defendants, 75 in number, were indicted for an alleged violation of section 37 of the Criminal Code (Comp. St. § 10201), conspiracy; the indictment being set forth in five counts. A demurrer to the fifth count was sustained, and the remaining four charged defendants with a conspiracy (a) to transport intoxicating liquor; (b) to sell intoxicating liquor; (c) to maintain a large number of nuisances in violation of the National Prohibition Law; (d) to "unlawfully * * * manufacture, transport, sell, possess for sale and barter, intoxicating liquor."

Of the 75 defendants named in the indictment, 7 were never arrested, 5 pleaded guilty before trial, and 63 went to trial. Of these 63, the court dismissed the case as to 1, 7 were acquitted by the jury, and 55 were convicted. Later, a motion for a new trial was granted as to 1, and 2 others were discharged on motions in arrest of judgment.

Judgments imposed upon the remaining 52 range from a penitentiary sentence of 18 months and a fine of $2,000, to imprisonment for 10 days. Forty-two of the remaining 52 prosecuted separate writs of error, though 3 of these have since served their sentences. The other 10 accepted the judgment, and have served their sentences.

Defendants have been grouped and divided by counsel into classes, and for convenience we adopt the classification:

"(a) The first group as disclosed by the evidence was composed of certain persons who held the office of justice of the peace, together with certain constables and other persons known as `high-jackers,' the chief of whom appears to have been Daniel Malloy, who was called as the first witness for the government.

"(b) Another group consisted of the sheriff of Lake county and his predecessor in office, together with numerous deputy sheriffs.

"(c) Another group consisted of the judge of the city court of Gary, the prosecuting attorney and his predecessor in office, and certain lawyers of the city of Gary, whose practice was largely in the city court.

"(d) By far the most numerous group of the defendants was composed of persons engaged in the ostensible business of operating soft drink parlors in the city of Gary, and who had been detected in the sale of intoxicating liquor."

The assignments of error are directed to (a) the sufficiency of the indictment; (b) the failure to grant a continuance; (c) failure to grant a change of venue; (d) failure to grant a new trial because of the undue influence of newspaper articles; (e) admissibility of evidence; (f) instructions to the jury; (g) failure to discharge defendants for want of proof to support a conviction.

While an effort to shorten the printed record, to avoid duplication of argument, and lighten the burden of this court has been made, the case is one of innumerable difficulties. Various defendants and groups of defendants have submitted briefs, with the result that over 1,250 pages of printed briefs and arguments have been filed by them, and in each one it is earnestly contended that the evidence fails to disclose a conspiracy to violate the National Prohibition Act in any of the ways set forth in the indictment; and, secondly, that it fails to show guilty participation by any one of the defendants in the conspiracy, if one can be found.

It is admitted that the evidence may show guilty participation by certain of the defendants in a great number of criminal offenses, but it is denied that they participated in the particular conspiracy here charged.

Before discussing the evidence, it may be well to point out that the rule laid down in Applebaum v. United States (C. C. A.) 274 F. 43, and frequently followed by this court (Holy v. United States, 278 F. 521; Grossman v. United States, 282 F. 790, 793; Wolf v. U. S., 283 F. 885, 888; Talbot v. U. S., 286 F. 21; Inks. v. United States, 290 F. 203), must govern us in determining whether there is present a jury question. It is of no avail for counsel to cite cases which have attempted to draw a distinction between "evidence" and "substantial evidence," or to point to an occasional decision where the appellate court weighed the evidence and reviewed the decision of the jury, upon a disputed issue of fact, for such is not the rule in this jurisdiction. The right of an accused to a trial by jury upon all issues of fact is guaranteed by the Fifth Amendment to the Constitution. But the accused cannot have both a trial by a jury, and a retrial by an appellate court. If the evidence be conflicting, then the issue is one for the jury, and no asserted distinction between "evidence" and "substantial evidence" can afford a basis for a modification of this rule.

On a motion for a new trial, the District Judge may set aside the verdict and grant a trial, notwithstanding the evidence is conflicting. But his action in so doing or refusing to do so is not subject to review by this court.

Another rule which can not be ignored in cases of this kind where the appellate court is asked to review the testimony to ascertain whether any evidence may be found to support the verdict, relates to the testimony of accomplices. However bitterly such testimony may be assailed before the jury, the fact remains that it alone may support a verdict. Caminetti v. United States, 242 U. S. 495, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; United States v. Heitler (D. C.) 274 F. 401. Upon appeal its weight or credibility is not involved. Whether they, or any of them, were moved by revenge or any other unworthy motive, whether they told the truth in part or in whole, was for the jury to determine.

Evidently their testimony was believed, and, if accepted, a condition was disclosed as shocking as may be found in the annals of municipal government. They described a situation where, from police to mayor, from bailiff to the court, corruption was rampant, vice was protected, bribery was common, and justice was a mockery. Moneys were collected from the dens of vice to secure the election of officials who were or became the partners of the grafter, the moonshiner, and the operators of bawdy-houses. The "city judge," the central figure around whom the evil and corrupt activities revolved, was sentenced to the penitentiary and to pay a heavy fine, and he accepted the sentence, and has not prosecuted a writ of error.

But it is urged, and correctly so, that all these offenses against local laws and good morals, and the evidence which established them, were irrelevant and immaterial, unless they tended to establish the offense charged, and for which alone defendants were on trial. But was such evidence irrelevant to the issues presented by the indictment?

Defendants were charged with a conspiracy to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.). It was necessary to first establish the unlawful combination — the criminal partnership or association. But it is not necessary, in order to establish a conspiracy that the proof show a written agreement. It is seldom the parties entering into a criminal conspiracy reduce their agreement to writing or call in any one to witness it.

A conspiracy may be established by circumstantial evidence or by deduction from facts. The common design is the essence of the crime, and this may be made to appear when the parties steadily pursue the same object, whether acting separately or together, by common or different means, but ever leading to the same unlawful result. If the parties acted together to accomplish something unlawful, a conspiracy is shown, even though individual conspirators may have done acts in furtherance of the common unlawful design apart from and unknown to the others. All of the conspirators need not be acquainted with each other. They may not have previously associated together. One defendant may know but one other member of the conspiracy. But if, knowing that others have combined to violate the law, a party knowingly co-operates to further the object of the conspiracy, he becomes a party thereto.

It is true campaign contributions, in and of themselves, may be innocent acts. They may be prompted by the worthiest of motives. But large sums, collected chiefly from those who run so-called soft drink parlors, may become strongly suggestive of crime, when supplemented by testimony showing that after election the operators of these places engaged in the open and unrestricted sale of liquor. If the contribution was inspired by worthy motives, why was it necessary to falsify the names of the donors? Might not the jury have fairly concluded that the change in the name from a notorious dive keeper, or the proprietor of a house of ill fame, to one unknown, constituted an implied admission that this collection of funds to help win an election was not an innocent act?

Nor is the evidence that defendants exacted large tributes from those who were prosecuted, or that other defendants paid large sums as bribes, suggestive merely of an obstruction to or a burden upon an illegal traffic. Where an occasional raid, or an occasional prosecution, followed by a small fine and supplemented by liberal payments of protection money,...