Collenger v. United States, 4353

• Decision Date: 08 July 1931
• Docket Number: No. 4353,4395-4400.,4353
• Citation: 50 F.2d 345
• Parties: COLLENGER v. UNITED STATES, and six other cases.
• Court: U.S. Court of Appeals — Seventh Circuit

50 F.2d 345 (1931)

COLLENGER v. UNITED STATES, and six other cases.

Nos. 4353, 4395-4400.

Circuit Court of Appeals, Seventh Circuit.

May 27, 1931.

Rehearing Denied July 8, 1931.

James J. Clark and William J. McAleer, both of Hammond, Ind. (McAleer, Dorsey, Clark & Travis, of Hammond, Ind., of counsel), for appellants Collenger and Antonean.

Sims, Godman, Stransky & Brewer and Tinsman & Blocki, all of Chicago, Ill. (Elwood G. Goodman, Gale Blocki, and Harry E. Heeren, all of Chicago, Ill., of counsel), for appellants Hale and Regan.

George Norman Murdock, of Chicago, Ill., for appellant Zarkovich.

C. B. Tinkham and Timothy P. Galvin, both of Hammond, Ind. (Richard P. Tinkham, Edmond J. Leeney, and Tinkham & Galvin, all of Hammond, Ind., of counsel), for appellants Hale, Regan, Zarkovich, Ramey, and D'Angelo.

Oliver M. Loomis and George L. Rulison, both of South Bend, Ind., and William B. Duff, of LaGrange, Ind., for the United States.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

ALSCHULER, Circuit Judge.

Of forty-six named in the indictment as "conspirators," forty-one were indicted, twenty-three of whom were tried together. As to four of these, the court directed acquittal, and the jury acquitted four. The other fifteen were found guilty, and sentenced to serve various terms of imprisonment and to pay fines. Seven of the fifteen bring these appeals.

The single count of the indictment charged the alleged conspirators and others unknown with having conspired to violate the National Prohibition Act, setting forth a number of overt acts.

The appellants are Hale, mayor of East Chicago, Ind., Regan, chief of police of that city, appointed by Hale, Zarkovich and Ramey, police officers under Regan, and Collenger, D'Angelo, and Antonean, who held no official place.

The court, in passing sentence, said: "If the matter was presented in a little different manner with reference to possibly one or two defendants there might be a different question involved. I do not feel that I am called upon in this case to discharge Philip Collenger (counsel seem to agree that the second person to whom the court referred was D'Angelo), and I am not urged to grant a new trial — * * * not even asked to. * * * I am saying if I were asked to grant him a new trial it would be a different question for me to decide, but I am only asked to grant him a stay, or an arrest of judgment, which discharges him, and I do not feel that he ought to be discharged. He might be entitled to another trial before another jury. If he wants it, now is the time for him to ask for it."

Collenger and D'Angelo moved for arrest of judgment and discharge, but not for new trial. As to D'Angelo, the government in its brief says, "Appellee is not in a position to insist that the evidence is sufficient"; and, as to Collenger, the brief says, "Since there is nothing in the record to show that these statements of Chandler were made in furtherance of the object of the conspiracy, and since this was the only evidence connecting Collenger with the conspiracy, it is not insisted by appellee that the evidence is sufficient to sustain the verdict."

Our independent examination of the record convinces us that what the court said, directly as to Collenger and inferentially as to D'Angelo, and what counsel for the government stated in its brief concerning the evidence against them, is well justified, and that the evidence was not sufficient to sustain the verdict against them. They now insist that they be ordered discharged because a verdict for their acquittal should have been directed by the court, and that, had this been done, they could not again be tried on the same charge. The government, while not opposing reversal of the judgments against them, insists that this court has no right to discharge them, but only to remand their cases for another trial, and cites Slocum v. New York Life Ins. Co., 228 U. S. 364, 33 S. Ct. 523, 57 L. Ed. 879. This decision sustains the government's contention, and binds us, in case of reversal, to direct a new trial. A different rule has been applied where jury has been waived. Routzahn v. Mason, 13 F. (2d) 702 (C. C. A. 6); International Harvester Co. v. National Surety Co., 44 F.(2d) 746 (C. C. A. 7). And so, on reversal of the judgment against D'Angelo and Collenger, remandment for new trial must follow, regardless of whether motion for new trial was interposed. The error alleged, and sustained by the record, is the denial of these appellants' motion for a directed verdict. Motion for new trial is not essential to avail of this error. Even had there been such motion, it is well settled that error may not be assigned upon the court's ruling thereon. Hume v. Bowie, 148 U. S. 245, 13 S. Ct. 582, 37 L. Ed. 438; Arkansas Valley Land & Cattle Co. v. Mann, 130 U. S. 69, 9 S. Ct. 458, 32 L. Ed. 854.

Respecting appellant Antonean, our search of the record fails to reveal competent evidence of his guilt any more than in the case of Collenger and D'Angelo. The government's brief fairly states that "the two witnesses upon whose testimony the verdict against Antonean depends were Pappas and Komeroski." Pappas testified: "I live at Indiana Harbor. I have visited the Balkan Hotel many times. It is way down below on Guthrie Street. John Antonean runs that place. He is right here in the court room. It has got 6 or 7 rooms upstairs and a bar downstairs. Nothing else. John Antonean runs it. There is a bar downstairs and girls upstairs, sporting place. I bought intoxicating liquor there plenty of times from John, the defendant there. It was whiskey and moonshine. He has got different kinds of whiskey. I forget how many times I visited that place since 1928. I spent plenty of money. I have been there since 1919. If I have money to spend, I drop in there. It has been the same kind of place since that date."

This sufficiently shows that Antonean was running a place where he unlawfully sold whisky in one part and conducted a house of prostitution in another, but does not of itself show conspiracy.

Komeroski testified he was a physician, and that for some months prior to late January, 1928, he called about once a week at the Balkan Hotel to examine the girls there. Questioned as to a conversation with Antonean at the Balkan Hotel he said: "I had a conversation with him at that time, in the later part of January, 1928. I came on that day and I was told by a man they called `John' (I didn't know his last name at that time) that I couldn't examine the girls. I know now his last name was John Antonean. I told him I didn't know why I couldn't, because I used to examine them every week and I knew the girls were there, and he told me that he had nothing to do about that, he was merely working there. I said `That seems funny, you had me come here before,' and he said, `Well, it is being taken care of by the police department,' and that he had nothing to do with it, and he was just working there. He mentioned the Chief being in charge of it. That is all he said and I left the place. It was not John Antonean who called me there at that time."

The only part of Komeroski's testimony that even hints at conspiracy is that Antonean told him, in effect, that the examination of the girls was being taken care of by the police department, that the chief was in charge of it. This might tend to indicate that there was a conspiracy between Antonean and the police department respecting the conduct of the house of prostitution, although even the conclusion of conspiracy respecting this field of endeavor may be questionable. It is common knowledge that such examinations are sometimes required to be made in the interest of public health, and there is no further evidence in the record to indicate that there was any corrupt agreement or understanding between the chief and Antonean on even this subject. Besides, the keeping of bawdy houses is not a federal offense, and a corrupt conspiracy with reference to it would not be indictable in a federal court.

While, as we stated in Allen et al. v. United States, 4 F.(2d) 688, there is more or less of practical relation between prostitution and drinking, yet, where the only evidence against an alleged conspirator to violate the liquor law is that he kept a place where liquor was sold, and that he admitted having some sort of an arrangement with the "police" or the "chief" with respect to the periodical physical examination of girls engaged in prostitution in a portion of his place, we are of the belief that the proof lacks the essential element of establishing the particular conspiracy charged, and that therefore the evidence against Antonean is insufficient to sustain the verdict in his case.

As to the other appellants it is not seriously contended that the record is so far wanting in evidence of their guilt as to have required direction by the court of a verdict in their favor. But various errors are assigned which it is contended necessitate reversal of the judgments against them.

Error is assigned on the admission in evidence of statements of different ones of the alleged conspirators to government agents who testified thereto, and the failure of the court to limit such evidence to the particular defendants who made the statements. Special Agent Lease testified for the government that shortly before the indictment was returned defendant Orta signed a statement offered in evidence. The statement is in the form of an affidavit, setting forth that Orta had for three years been proprietor of a place in Indiana Harbor; that in July, 1928, he accompanied Mendez, an alleged conspirator named but not indicted, to his place of business, where Orta was then told that he (Orta) would be required to purchase his liquor from Mendez, and that it would cost $100 for protection from the police; that he paid Mendez $100 cash, and afterwards $50, and for several months bought liquor from Mendez, but, on discontinuing such purchases, was...