Cooper v. United States, 8331.

• Decision Date: 30 June 1937
• Docket Number: No. 8331.,8331.
• Citation: 91 F.2d 195
• Parties: COOPER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

91 F.2d 195 (1937)

COOPER et al. v. UNITED STATES.

No. 8331.

Circuit Court of Appeals, Fifth Circuit.

June 30, 1937.

COPYRIGHT MATERIAL OMITTED

S. D. Bennett, of Beaumont, Tex., for appellants.

Harvey G. Fields, U. S. Atty., and J. Fair Hardin, Whitfield Jack, and Malcolm Lafargue, Asst. U. S. Attys., all of Shreveport, La.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

Will Cooper, Johnny Cooper, and Alexander Cormier were convicted in the District Court for the Western District of Louisiana for conspiracy to violate the internal revenue laws relating to distilled liquors and for eight substantive offenses against those laws. They were each sentenced to two years' imprisonment on the conspiracy count, and the record thus continues: "On the remaining counts on which the accused were convicted by the jury the court ordered that the imposition of the sentence be suspended for a period of five years conditioned upon their not again violating any law, State or federal, during said period of suspension or probation." On this appeal by all of them the assignments of error make four points: (1) That a demurrer to the indictment should have been sustained; (2) that an accountant should not have been allowed to make and testify concerning a summary of certain books of account; (3) that each defendant should have had an instructed verdict in his favor for variance or for lack of evidence to convict; (4) that final sentence should on defendants' demand have been pronounced on all counts.

1. The objection to the conspiracy count rests on these words in it: "Will Cooper, Johnny Cooper, Alexander Cormier, whose names are to your Grand Jurors unknown, hereafter called defendants, did knowingly, wilfully and unlawfully conspire * * * with each other and with other persons whose names are not known to your Grand Jurors to commit certain offenses" which are fully set forth. "That said unlawful agreement and conspiracy was to be and was in fact carried into effect in substantially the following manner, towit: Will Cooper, Alexander Cormier and Johnny Cooper caused to be constructed the bootleg stills. These three defendants then caused all of the other named defendants to transport said illicit stills * * * and operated by all the above named defendants acting together. * * *" It is contended first that to name the accused and then to state that their names are unknown renders the indictment repugnant and void. No authority is cited. Probably the indictment, following a common form, was intended to read: "Whose names otherwise are to your Grand Jurors unknown." The tenor of the whole indictment is to charge the three appellants by specified names with being the principal actors in the unlawful enterprise. The statement that their true names are unknown is surplusage. No misnomer is pleaded by them. The indictment is sufficiently certain.

It is next argued that the count is meaningless because it alleges that these three caused "all the other named defendants" to transport the stills and operated them all together, there being no other named defendants. The copy of the indictment in the record shows that as first written there were twenty-two other defendants named, but their names were stricken out by the grand jury. By a bill of particulars which was requested and furnished the defendants were informed that these persons so stricken were contended to be coconspirators under count 1. There was left no real doubt as to what the count meant, and no prejudice to any substantial right of the appellants resulted. The criticized allegation is only one in a long description of what was done, and, if meaningless in itself, enough remains to fully describe the conspiracy.

The other counts which are for substantive offenses do not name any one, but each charges "the said defendants." The three persons named in count 1 and there stated to be "hereafter called defendants" are by a sufficiently plain reference identified as the accused.

2. The managers of two grocery stores each identified seventy-odd books of account from his store as containing very numerous entries of purchases of sugar, rye, and oak chips, useful in making whisky and bought by Will Cooper and Alexander Cormier separately during the period of the alleged conspiracy, some having been charged in the name of the respective purchasers and others at their several requests being charged under another name or a symbol such as XX or XZ. The books themselves were admitted in evidence. An accountant was then used by the prosecution as a witness, who produced detailed summaries showing the dates and amounts of the purchases, those charged to Will Cooper and those to Alexander Cormier, and testified to the results over the defendants' objection that the original books being in court were the best evidence, and that the accountant's statements were but hearsay and operated to deny the confrontation by the witnesses guaranteed to an accused person by the Constitution (Amendment 6). Counsel have argued the applicability of the Act of June 20, 1936, § 1 (28 U.S.C.A. § 695), touching the admissibility of business books and entries, which was passed since this indictment was returned, and which declares that it shall not be retroactive. That act relates to the admission of books in evidence, and no error is here assigned as to that. We have no occasion to examine the...