Bailey v. United States

• Decision Date: 03 December 1931
• Docket Number: No. 6007.,6007.
• Citation: 53 F.2d 982
• Parties: BAILEY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

53 F.2d 982 (1931)

BAILEY et al. v. UNITED STATES.

No. 6007.

Circuit Court of Appeals, Fifth Circuit.

December 3, 1931.

Julian C. Ryer, of Brooklyn, N. Y., for appellants.

Chas. L. Redding, U. S. Atty., of Savannah, Ga.

Before BRYAN, HUTCHESON, and WALKER, Circuit Judges.

WALKER, Circuit Judge.

The appellants were convicted under the first, second, and fourth counts of an indictment which contained nine counts. The first count charged the appellants and Mary M. Thompson, Wilson Jenkins, and others with conspiring to smuggle intoxicating liquor from named foreign countries to points in the Southern District of Georgia, and to facilitate the transportation of such liquor from the places where it was introduced into the United States to Savannah in that district and to other towns and cities in the United States to the grand jurors unknown. The second and fourth counts each charged the appellants and others with continuously, at divers times and on divers dates to the grand jury unknown, beginning on January 1, 1929, and continuing to the finding and return of the indictment, at divers places within the Southern District of Georgia, smuggling into the United States from named foreign countries ten thousand quarts of intoxicating liquor. The second and fourth counts were demurred to on the grounds of duplicity and insufficiency in law. The demurrers were overruled.

Indictments in the same form as counts 2 and 4 have been held by this court to be bad. Curtis v. United States, 38 F.(2d) 450; Sanchez v. United States, 52 F.(2d) 1086, U. S. Circuit Court of Appeals, Fifth Circuit, October 27, 1931. Those counts were subject to the demurrers interposed to them. The convictions under those counts cannot be sustained.

The trial was entered upon on Monday, March 31, 1930. The jury was called, and the court asked prospective jurors questions on voir dire corresponding with those prescribed by a Georgia statute, namely: "Have you, from having seen the crime committed, or having heard any of the testimony delivered on oath, formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar?" "Have you any prejudice or bias resting on your mind either for or against the prisoner at the bar?" "Is your mind perfectly impartial between the State and the accused?" Michie's Georgia Penal Code, 1926, § 1001. Immediately after this had occurred, counsel for the appellants made known to the court that he desired to interrogate the jurors, either directly or through the court, and, after the first juror called had come to the witness chair, submitted to the court seventeen written questions which he desired to be put to each of the jurors, and he stated to the court that on Wednesday, Thursday, Friday, and Saturday of the preceding week, and again that morning before court, he made demand upon the clerk of the court for a list of the jurors, which the clerk refused to give him. The clerk corroborated that statement. Thereupon the court stated that there is a standing order of the court that, when the jurors are drawn, their names shall not be published or communicated to any one, either to the government or any one else, prior to the convening of court, and that the clerk was complying with the standing order of the court, which had been in force for some years, when he declined to let counsel see the jury list; and the court disposed of the suggestion or request by stating: "The other questions you propose are not covered by law." The questions submitted included the following: "Have you at any time had any business dealings or transactions of any kind with the District Attorney, or any of his assistants?" "Are you a member now of any Prohibition Enforcement Society or league or organization?" "Did you read the newspaper accounts of the former trial in December, 1928? Have you any fixed opinion by reason of such reading?" "Did you read any newspaper account of the recent trial of Wilson Jenkins and Mrs. Mary M. Thompson, and in which these two defendants now on trial were mentioned?" Allegations of pleas of former jeopardy which had been filed in this case by the appellants showed that in December, 1928, at a former term of the court, the appellants had been convicted under an indictment returned in ...