Connley v. United States, 6124.

• Decision Date: 05 January 1931
• Docket Number: No. 6124.,6124.
• Citation: 46 F.2d 53
• Parties: CONNLEY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

46 F.2d 53 (1931)

CONNLEY et al. v. UNITED STATES.

No. 6124.

Circuit Court of Appeals, Ninth Circuit.

January 5, 1931.

Mark L. Herron, C. L. Belt, and Russell Graham, all of Los Angeles, Cal., for appellants.

Samuel W. McNabb, U. S. Atty., and J. Geo. Ohannesian and William R. Gallagher, Asst. U. S. Attys., all of Los Angeles, Cal.

Before RUDKIN and WILBUR, Circuit Judges, and NORCROSS, District Judge.

NORCROSS, District Judge.

Appellants, Peter Connley and Herman F. Quirin, together with Nick Bruno and Joe Verda, were made defendants in an indictment charging offenses in six counts, briefly stated in substance as follows:

1. A conspiracy to unlawfully manufacture, possess, and transport intoxicating liquor.

2. The unlawful manufacture of intoxicating liquor.

3. The unlawful possession of a still not registered with the collector of internal revenue.

4. The unlawful carrying on of the business of distillers without having given bond and with intent to defraud the United States of revenue.

5. The unlawful making and fermenting of about 50,000 gallons of mash on certain premises other than a distillery authorized by law.

6. The unlawful possession of about 1,300 gallons of intoxicating liquor for beverage purposes.

Upon trial appellant Connley was convicted upon all counts. Appellant Quirin was convicted on count one. Defendants Bruno and Verda were acquitted.

Sentences of imprisonment were imposed upon appellant Connley of one year and two months on the first count, two years on the second count, one year and two months on the third count, and one year and one month on each of counts four and five, the sentences to run consecutively. In addition, Connley was fined $4,000, inclusive of the maximum fine of $500 on count 6. Appellant Quirin received an imprisonment sentence of 21 months and a fine of $1,000. From the judgments entered appeal is taken.

On behalf of appellant Connley, it is contended that the third count of the indictment does not state an offense, in that it does not charge a failure to register with the Prohibition Administrator, as required by article 18 of Prohibition Regulation 3, adopted in pursuance of the Prohibition "Reorganization Act" (5 USCA § 281c).

In the case of Silva v. United States, 35 F.(2d) 598, this court held "the defect is vital." In the Silva Case the question had been raised by motion in arrest of judgment, while in this case the question is presented for the first time on appeal. For that reason it is contended by appellee that appellant may not now be heard to question the sufficiency of the count, citing United States v. Dibella (C. C. A.) 28 F.(2d) 805. It would seem that in the Dibella Case the court treated the indictment as then presenting simply a question of a defective statement of an offense, rather than an entire failure to charge a crime, as was later held by the same court in United States v. Lecato, 29 F.(2d) 694. The rule, however, applied by this court is that where "the indictment fails to state facts sufficient to constitute the crime charged," the question may be raised for the first time on appeal. Sonnenberg v. United States (C. C. A.) 264 F. 327, 328. See, also, Remus v. United States (C. C. A. Sixth Circuit) 291 F. 513, certiorari denied 263 U. S. 717, 44 S. Ct. 180, 68 L. Ed. 522.

Further on behalf of appellant Connley it is contended:

"The offenses charged and attempted to be charged in the second, third, fifth and sixth counts of the indictment are component parts of and necessarily included in the offense charged in the fourth count of the indictment, and sentences on each of said second, third, fourth and sixth counts, to run consecutively, constitute double jeopardy and result in five different punishments for the one inclusive offense."

The only question raised in the trial court respecting two or more offenses charged in the several counts of the indictment being in fact but one offense was presented upon a motion requiring the government to elect whether it would proceed on the second or the fifth count, which motion was denied. The ruling upon this motion is not assigned as error. Whether any count of the indictment is inclusive of an offense charged in another count, or whether such question may be considered when raised for the first time upon appeal or in the absence of assignment of error, is unnecessary to determine.

It is contended that the trial court was guilty of misconduct prejudicial to the rights of appellants in its examination of the witness Richard Kelly.

Richard Kelly, a proprietor of certain boiler works in the city of Los Angeles, was called as a government witness to testify to the sale of certain boilers and other merchandise which constituted part of the equipment of a still located on the ranch of defendant Bruno, at which still the defendant Connley was arrested on January 21, 1930. The several items so sold were carried into the books of account of the witness Kelly as having been sold to one P. Walker. The witness described Walker "as a man about thirty years old and weighing two hundred pounds or over." The witness did not identify Walker as the defendant Connley, nor does the record show that upon his original examination he was asked if he could identify him. During the examination of the witness Albert Kruse, an employee of Kelly, the court stated: "I don't see why this court shouldn't order this man Kelly in here again." The jury was excused and Kelly appeared before the court. Among a number of expressions the court said to Kelly: "Now developments this morning convince the court * * * that you are, to say the least, able to identify the man Walker, known to you as Walker, * * * and we expect you to get your memory in shape to identify that man if he is in the court room." Kelly was directed to walk around within the railing of the courtroom past where the defendants were sitting, and was then asked: "Do you see anybody inside of the railing that, in your judgment, appears like the man who had these several business transactions with you?" To which question Kelly replied: "Well, I wouldn't say that I could identify any of them, your Honor." Following this answer the court stated: "The court is of the opinion that this witness is bound not to be frank * * * and he is bound to come through, if it is possible." After further directions to "look at each individual and see if you can see the man with whom you had this transaction, or a man that looks like him," the witness answered: "I wouldn't say that there was anybody there that I could say for sure." Later, in reference to the defendant Connley, Kelly said: "Well, I would say he looks more like him than any one else I see down there." To the court's question, "Well, does he look like him," Kelly answered: "Well, in a general way, yes."

The jury was returned to the courtroom, and after counsel for the prosecution stated, "We have no questions to ask this witness," the court said: "The court will accept that responsibility, gentlemen, with pleasure, as a matter of necessity." Following certain preliminary questions or statements the court said to the witness: "Tell the jury whether you see in the court room a man who resembles this P. Walker with whom you had these transactions." The reply of the witness, and other portions of the record relating thereto, are as follows:

"I am telling the jury I looked at the people around the court room and I only see one that I would say resembled this man that went by the name of Mr. Walker. I wouldn't say that was him for sure, but —

"The Court: Which man is it?

"The Witness: This man sitting over there with the red necktie. * * *

"The Court: Let the record show the defendant indicates the defendant Connley alias Walker. Cross examine.

"Mr. Belt: No cross examination."

Upon the conclusion of this testimony a recess was taken, following which, the court, out of the hearing of the jury, directed the marshal to detain Mr. Kelly in his custody.

While the witness Albert Kruse was on the stand, and before the jury was directed to retire from the courtroom, he had testified: "The person that came there was a heavy, fleshy man. I don't know his age, if I am not mistaken, I would suggest he would be about 30, maybe 35, something like that."

After the jury had retired, the court said: "I was very well satisfied that Mr. Kelly was determined the other day not to make a witness in this case if he could help it." And further: "When it comes to the question of identification, certainly Kelly ought to be able to help, better than this man." And to the witness Kruse said: "Would you know the man you saw talking with Kelly again, if you saw him?" The reply of the witness was: "Well, I probably would, although there is lots of people coming in there and the chances are I may and the chances are I may not." After the jury returned the witness Kruse testified: "I have seen the gentleman I have described * * * two or three times. * * * I didn't pay any particular attention. From the witness stand it appears to me that this man between the two gentlemen in gray (indicating the defendant Connley)."

Charles Kruse, also an employee of Kelly, following the second examination of the witness Kelly, testified: "I was working at Kelly's Boiler Works in the month of January of this year. I saw two men there that I see here. In connection with my statement that I see one man, it is the gentleman sitting next to the lady with the brown straw hat, * * * the one with his hand to his mouth (indicating the defendant known as Connley). I saw the defendant Connley more than once. I would say I saw him at least twice, because I saw him in two different places. * * * The other gentleman was the young man sitting to the left of the lady (indicating the defendant Bruno), the one with the small moustache there." Upon cross-examination the witness testified: "I was sitting here in the court room during the time Mr. Kelly...