Belvin v. United States

• Court: U.S. Court of Appeals — Fourth Circuit
• Writing for the Court: WADDILL, ROSE, and PARKER, Circuit
• Citation: Belvin v. United States, 12 F.2d 548 (4th Cir. 1926)
• Decision Date: 14 April 1926
• Docket Number: No. 2444.,2444.
• Parties: BELVIN et al. v. UNITED STATES.

12 F.2d 548 (1926)

BELVIN et al. v. UNITED STATES.

No. 2444.

Circuit Court of Appeals, Fourth Circuit.

April 14, 1926.

Henry Bowden and Charles S. Grant, both of Norfolk, Va., for plaintiffs in error.

Paul W. Kear, U. S. Atty., of Norfolk, Va. (Callom B. Jones, Asst. U. S. Atty., of Richmond, Va., and Alvah H. Martin, Asst. U. S. Atty., of Norfolk, Va., on the brief), for the United States.

Before WADDILL, ROSE, and PARKER, Circuit Judges.

PARKER, Circuit Judge.

This is a writ of error prosecuted by George W. Belvin and John McGowan, who with two other defendants were convicted under section 37 of the Penal Code (Comp. St. § 10201) of conspiracy to violate the provisions of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.). The indictment first charged in general terms a conspiracy between Belvin, McGowan, and nine other persons to transport, sell, and deal in intoxicating liquors in the city of Norfolk and vicinity unlawfully and in violation of the Act of October 28, 1919, commonly known as the Volstead Act. It then proceeded to describe the functions which each of the persons charged in the indictment were to perform in carrying out the conspiracy, alleging that the defendant Murphy was to act as head of the business, was to furnish money and property to carry it on, and was to get in touch with prospective customers and persons from whom it was expected to obtain liquor for sale; that defendants Belvin, McGowan, and Davis were to carry out under the supervision of Murphy the business contemplated in the conspiracy, to act as intermediaries between customers and supply men, and to arrange for delivery of liquor to purchasers; that defendants Freeman and Trotter were to act as bartenders and sellers of liquors to the retail trade; that defendants Smith and Bailey were to deliver and assist in delivering to purchasers the liquors sold pursuant to the conspiracy; and that defendants Miller, Estes, and Johnson were to secure immunity from legal prosecution for the conspirators. The indictment contained three counts, each setting forth the conspiracy above outlined, but each charging different overt acts as having been done in furtherance thereof. The first and second counts charged as overt acts sales of small quantities of liquor by Freeman and Trotter. The third count charged as overt acts a conference between Murphy and the witnesses Asher and Hertzig, in which he directed them to go to Belvin for the purchase of liquors, an agreement by Belvin to sell liquors to the witnesses, and an inspection by him of their place of business, the delivery of five gallons of liquor to the witnesses by Smith and another of the defendants and the collection from the witnesses of $30 by Belvin.

Upon the trial in the District Court, evidence was offered in support of the allegations of the indictment which, if believed by the jury, was amply sufficient to establish the existence of the conspiracy, the connection of the various defendants therewith, and the overt acts alleged. The jury convicted Belvin, McGowan, Smith, and Bailey, acquitted Miller, Estes, Johnson, Freeman, and Trotter, and were unable to agree as to Murphy and Davis.

At the beginning of the trial, the defendants moved the court to exclude eleven of the jurors subsequently impaneled to try the case, on the ground that they had served in a number of other cases involving violations of the National Prohibition Act, in which the witnesses relied on by the government in this case had testified, and in which the credibility of these witnesses was necessarily involved. The defendants alleged that these jurors, having passed upon the credibility of the witnesses and having believed them in those cases, were not fair and impartial jurors for the trial of this case, where the credibility of the same witnesses was again involved. The trial judge, before passing upon the motion, examined each juror under oath as to whether he was so prejudiced in favor of the government witnesses as to affect his judgment, and, being assured to the contrary, overruled the motion.

The defendants assign as error: (1) The denial of the motion to exclude the eleven jurors; (2) the overruling of a demurrer to the indictment raising the point that it failed to allege that the intoxicating liquor mentioned therein was fit for beverage purposes; (3) the refusal to direct a verdict for defendants on the ground that the evidence showed merely a series of violations of the Volstead Act and not the conspiracy charged; (4) general error in the charge of the court; and (5) refusal to grant a motion in arrest of judgment, on the ground that the verdict was inconsistent with the charge of the indictment. We shall consider these in the order named.

The motion to exclude the eleven jurors who had served in other cases was properly denied. The trial judge interrogated them and determined that they were impartial jurors. The exact point has been decided adversely to the contention of defendants by the Circuit Courts of Appeals of the Sixth and Eighth Circuits. Wilkes v. U. S. (C. C. A. 6th) 291 F. 988; Haussener v. U. S. (C. C. A. 8th) 4 F.(2d) 884. In the Wilkes Case Judge Knappen, speaking for the court, said:

"It was not error to deny the motion. There was under it no showing of fact that the jurors had either formed or expressed opinions as to the merits of the instant case. There is no presumption of law that they did do so, nor any presumption that a juror who has heard the evidence in one of the cases, or even sat in one or more cases, will be other than impartial in another case merely because it is of the same general type. Each case involved differing conditions and questions of credibility on the part usually of different defendants, and the credibility of both Taylor and his wife witnesses for the government was required to be weighed, not only upon the facts of the individual case, but as between these witnesses and different defendants."

The practical difficulty in the administration of justice if the rule contended for by defendants be accepted as the law, is well stated in the Haussener Case:

"If, when one case has been tried, the entire panel of jurors sitting therein is disqualified from sitting as jurors in every other case of a similar sort, trial courts will be so far impeded in the transaction of their business as to make the enforcement of this act difficult, if not impossible."

Furthermore, the competency of the individual jurors was a question addressed to the sound discretion of the trial court, and, in the absence of abuse of discretion, the action of the trial judge with regard thereto is not reviewable. Hopt v. Utah, 120 U. S. 430, 7 S. Ct. 614, 30 L. Ed. 708; Texas & Pac. Ry. v. Hill, 237 U. S. at 214, 35 S. Ct. 575, 59 L. Ed. 918; Assaid v. U. S. (C. C. A. 4th) 10 F.(2d) 752, decided January 12, 1926.

The demurrer to the indictment was properly overruled. The ground of the demurrer was that the indictment failed to state that the intoxicating liquors which it was alleged that the defendants had conspired to transport, sell, and deal in contrary to the provisions of the Act of October 28, 1919, were "fit, sold, transported or possessed for beverage purposes." It was not necessary to allege that the...