Beard v. United States, 6480.

• Decision Date: 03 February 1936
• Docket Number: No. 6480.,6480.
• Citation: 65 App. DC 231,82 F.2d 837
• Parties: BEARD et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

65 App. DC 231, 82 F.2d 837 (1936)

BEARD et al. v. UNITED STATES.

No. 6480.

United States Court of Appeals for the District of Columbia.

Argued December 9, 1935.

Decided February 3, 1936.

John J. Sirica, Martin F. O'Donoghue, and Maurice McInerney, all of Washington, D. C., for appellants.

Leslie C. Garnett, U. S. Atty., and Roger Robb and John W. Fihelly, Asst. U. S. Attys., all of Washington, D. C.

Before MARTIN, Chief Justice, and VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

GRONER, Associate Justice.

All thirteen appellants were indicted for setting up and keeping a gaming table for the purpose of gaming; and for setting up and keeping a certain place for gaming; and for conspiracy to violate certain sections of the District of Columbia Code (the substantive offenses). All were charged with committing one or more specified overt acts. A joint demurrer and a joint motion to quash were overruled. A bill of particulars was filed, limiting each count of the indictment in point of time to the period January 1 to December 14, 1934, and designating the place as 508 Mather building in Washington, District of Columbia. The bill of particulars further declared that it was purposed to show that the conspiracy contemplated the setting up of gaming tables, etc., at a number of different places in the city of Washington.

At the trial none of appellants testified, and all the evidence offered in their behalf was character evidence as to one of them. The government proved that the rooms in question in the Mather building had been occupied for a number of years by organizations purporting to be engaged in disseminating racing information. The names that from time to time appeared on the door of the suite were Wilson Company, Empire Company, Shepherd Company, Southern News Co., etc. In September, 1934, the name on the door was changed to National Amusement Company. Hutchins, one of appellants, had paid the rent for the suite for "the last eight or ten or twelve months." He and appellants Beard, O'Callaghan, Smith, Levy, Gallagher, and Meese were frequently seen in and about the building on the floor on which the alleged gambling establishment was maintained.

Preceding June, 1934, the occupant of the suite had subscribed to eleven central office telephone lines and twenty-four private telephone lines; i. e., lines connecting — without central office assistance — the suite with sundry places in Washington city. On June 30, 1934, these telephones were disconnected, and on September 15th Harwood, who was indicted but never arrested, arranged with the telephone company to install sixty central office telephones in the suite. He gave the telephone company a check for $2,210 as a deposit. The check was drawn on a bank account established for that specific purpose.

In September, 1934, Police Officer Little, another officer, and an assistant district attorney went to the suite and endeavored, but unsuccessfully, to gain admission. Then they went to a room adjoining, where, by listening, they heard voices broadcasting horse race news and taking horse race bets. On October 2, 1934, the police tapped the telephone wires connecting the telephones in the suite. They listened in on October 2, October 3, October 4, and October 5. They heard some person or persons in the suite giving out information concerning horse races and receiving bets on horse races. With each incoming call they heard the person calling identify himself by a number. Seven of the numbers were. 4, 7, 10, 18, 22, 27 and 28; and the seven persons calling in placed bets with some person in the suite.

In the afternoon of October 5th the police obtained a warrant from the United States commissioner for the arrest of George Harwood, alias Willie Carroll, and went to the door of the suite and demanded admittance. As no response was made, they broke down the door. On entering they found a large room equipped with a switchboard running on three sides of the room. On the switchboard were approximately twenty-five telephones, most of them ringing, — which were in turn connected to 69 call boxes and about 630 small copper switches. The switches were marked with tabs bearing numbers. In front of each telephone was a "run-down sheet" showing the entries at the various race tracks. At one end of the room was a pigeonhole file cabinet, in which were found several hundred slips recording bets on horse races. In another room were found slips recording bets on races run that day. In the lower right-hand corner of these slips appeared numbers corresponding to those the police had heard over the telephones. The slips were in nine different handwritings. As a matter of fact, slips were found recording each bet which the officers had heard telephoned in during the hours preceding the raid, and these corresponded identically with the stenographic transcript of the telephone conversations recorded by a stenographer who listened in with the police. There was also found other betting paraphernalia and twenty-five loaded dice.

On one of the switchboards there was found a sheet of paper (known to the record as Exhibit 48) containing seventeen telephone numbers and, to the left of each number, a separate and different number. The last-named numbers corresponded with the numbers which the police had heard called in over the telephones from the outside before bets were made; and the telephone numbers, as shown by the telephone company's records, designated telephones located in places which, as we have seen, were charged by the district attorney as other places in which gambling was carried on in connection with the place raided. For instance, on Exhibit 48, opposite "Number 16" was "Dist. 1808"; and the latter; by reference to the telephone company's records, was shown to be a telephone located at 514 Tenth Street N. W. No. 16, in turn, was (on the theory of the prosecution) the code or identification number of the place from which the calls originated.

Evidence was introduced showing, as to some six or eight of such places, that they had been raided from time to time during the time period covered by the indictment and were known to the police as gambling places. There was also evidence that the blank betting slips which were found by the police were delivered to appellant Heck in May, 1934, on his order, pursuant to an original order placed by appellant Beard in 1932.

At the conclusion of the government's case, appellants each moved for a directed verdict as to each count of the indictment, which was denied. On the trial the jury found all guilty on all counts. There was judgment on the verdict.

There are eighty-two separate assignments of error, but a number are abandoned, and we shall discuss only those which were pressed in argument or the brief.

First. Was the indictment defective? It is challenged on the ground that it is vague. It is said that neither of the first two counts gives the location in the District of the gaming table or the place; that there is no reference to the date or dates on which the bets were taken; and that there is no particular allegation that money passed. The criticism of the conspiracy count is that it is not charged there is any relationship between the conspiracy and the overt acts alleged to have been committed in furtherance of its objects, and it is said that it was not proper to combine in one indictment the substantive counts and the conspiracy count.

We think none of these objections well taken.

R.S. § 1025 (18 U.S.C.A. § 556) was enacted for the purpose of preventing miscarriage of justice through the application of technical rules in relation to matters of form in indictments, and it is now universally held that the sufficiency of a criminal pleading is to be determined by practical, rather than technical, considerations. Or, as the Supreme Court said, the rigor of the old common-law rules has yielded in modern practice to the general principle that formal defects not prejudicial will be disregarded. Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861. It is ordinarily enough, if the indictment contains the essential elements and ingredients of the offense charged; and this for the purpose of apprising the accused of the nature of the charge and protecting him from a second prosecution.

Here the indictment charged the offense as occurring in the District of Columbia. That was sufficient as to location. Pope v. United States (C.C.A.) 289 F. 312. It charges the maintaining of a gaming table and a place in which gaming was done. The statute in neither case requires proof of the passing of the money. — The indictment is drawn in almost the language of the statute, and charges that both as to place and table defendants were conducting a gaming establishment. That is sufficient. Miller v. United States, 6 App.D. C. 6; Swan v. United States, 54 App.D.C. 100, 295 F. 921. And in an indictment for conspiracy it is sufficient to allege that the overt acts were done to effect the object of the conspiracy. Felder v. United States (C.C.A.) 9 F.(2d) 872. Nor is there anything in the point that the government has chosen to join a conspiracy count with the other counts. All the counts relate to the same acts and transactions, and all depend on substantially the same proof. Chew v. United States (C.C.A.) 9 F.(2d) 348, 353. In such case section 1024, R.S. (18 U.S.C. A. § 557) provides for joining all in one indictment. It was a common practice in indictments under the National Prohibition Act (27 U.S.C.A.) to join charges of possessing whisky, selling whisky, and of conspiracy to manufacture whisky in the same indictment. See Goodfriend v. United States (C.C.A.) 294 F. 148. See, also, Perry v. United States (C.C.A.) 18 F.(2d) 477; Hood v. United States (C.C.A.) 23 F.(2d) 472.

The test is whether the same evidence is necessary to establish both charges, for in those circumstances counts relating to the same transactions or series...