Cornero v. United States

Decision Date23 March 1931
Docket NumberNo. 6295.,6295.
Citation48 F.2d 69
CourtU.S. Court of Appeals — Ninth Circuit

Otto Christensen and Simpson & Simpson, all of Los Angeles, Cal., for appellant.

Samuel W. McNabb, U. S. Atty., and Harry Graham Balter and Milo E. Rowell, Asst. U. S. Attys., all of Los Angeles, Cal.

Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.

WILBUR, Circuit Judge.

The appellant, with seven others, was charged with conspiracy to violate the National Prohibition Act. The indictment, returned on June 16, 1927, alleges that the conspiracy was entered into on the 1st of June, 1925, to "possess and transport" intoxicating liquors. The appellant pleaded not guilty on July 12, 1927. Four of the defendants, Jones, Howell, Richards, and Allen, pleaded guilty. On May 3, 1928, a jury was impaneled to try the appellant and L. V. Murphy. The jury was discharged on May 8, 1928. The appellant claims that, by reason of the selection of the jury on May 3 and its subsequent discharge on May 8, he was placed in jeopardy. He opposed the continuance of the case and the discharge of the jury, and, before a jury was again selected, on May 6, 1930, to try appellant and two of his codefendants, appellant interposed a plea of former jeopardy, which was overruled. Thereupon the case proceeded to trial upon the plea of not guilty, and a verdict of guilty was returned against appellant and Jack Wilson, a codefendant. The jury disagreed as to defendant L. V. Murphy. Appellant was sentenced to imprisonment for two years at McNeil Island and to pay a fine of $7,500. Wilson was placed on probation.

The general rule is that, where the jury has been impaneled for the trial of a criminal case, jeopardy has attached, and in such case the plea of former jeopardy should be sustained. There are exceptions, however, to this general rule as to what constitutes former jeopardy, and the government contends that the case at bar comes under one of these exceptions. It appears from the record that, when the case was called for trial, the district attorney proceeded to impanel the jury without having ascertained whether or not his witnesses were present. He was relying upon the testimony of two of the codefendants, Howell and Jones, who had previously pleaded guilty and who were released under bond to appear for sentence on the day of trial. They were not subpœnaed as witnesses, but it was assumed by the district attorney that they would be present at the trial in view of their obligation and bond so to do. Immediately after the first jury was impaneled, the district attorney ascertained that his witnesses were absent, whereupon the court continued the case from time to time to May 8. On that date the district attorney announced:

"Mr. Gallagher the district attorney: If your Honor please, in that matter we wish to move for a continuance on behalf of the Government. This is a matter that involves the intimidation of witnesses whom we have not been able to locate, and we are not ready for trial. We are endeavoring to locate the witnesses, and I believe, your Honor, that the continuance of this matter would not be outside the court's sound judicial discretion.

"The Court: Are the witnesses not here?

"Mr. Gallagher: No. We have not been able to determine their whereabouts.

"The Court: What efforts have you made to get them?

"Mr. Gallagher: The witness Jones has closed his home and stored his furniture and bought two new tires for his automobile and started for a place unknown. Boarders in a house near his are watching the despatch of communications to stop them from reaching us and are intercepting messages to Jones. We have interviewed Howell's wife and she doesn't know his whereabouts. Those two witnesses are absolutely indispensable to the proof of the Government's case.

"Mr. Simpson: If your Honor please, we renew our objections to the continuance of this case and wish to call the court's attention to the fact that the district attorney had an opportunity prior to the time the jury was empaneled and sworn to ask for a continuance. There have been —

"Mr. Gallagher (interrupting): The record will show I did not have the opportunity.

"Mr. Simpson: There have been no subpoenas issued in this case for the attendance of those two witnesses, although the subpoenas were issued for other witnesses. There is no showing in this case that if those two witnesses were present that they would be competent to testify or that their testimony would be material. There is no showing of any due, or in fact any, diligence in this case to procure the attendance of those witnesses. For those reasons and on those grounds, and the fact that the defendant is in jeopardy and here in court, we move the court to instruct the Government to proceed at this time or that the jury be instructed to return a verdict of not guilty.

"The Court: The gentlemen of the jury are discharged.

"Mr. MacDonald: We object, your Honor, to the discharging of the jury in this case at this time.

"The Court: The case will go off calendar.

"Mr. MacDonald: May an objection and an exception to the order of the court discharging the jury be noted?

"The Court: Surely. The case is off calendar. It automatically goes over to the term unless the district attorney makes some other disposition of it in the meantime.

"Mr. Gallagher: If your Honor please, in the Cornero case the defendant Richards has appeared. May I suggest that the time of his sentence be deferred until some time during this term?

"The Court: June 25th.

"The Clerk: Your Honor, were Frank Cornero and Murphy present in court this morning?

"The Court: Yes, they were present."

The district attorney contends that the jury was not impaneled on May 3, 1928, with the understanding that both sides were ready to proceed on the merits. When the case was called for trial, the district attorney stated that there were three witnesses for the government, two of whom had failed to make an appearance. He suggested to the court that perhaps they could impanel the jury and have one of the investigating officers make a search and "see why they are not here."

Three defendants, Murphy, Richards, and Cornero, were present in court and responded to the call of their names, whereupon the district attorney stated:

"May I suggest we impanel the jury and that I have a short time to ascertain as to the witnesses?"

Thereupon the jury was impaneled and sworn to try the case. The court then asked if the district attorney was ready to proceed, and he stated that he was not, and would like a short continuance to ascertain where his witnesses were. Both lived out of the county in which the trial was held, one in San Bernardino and one in Orange county. The district attorney stated both witnesses were absolutely indispensable. The jury were temporarily excused, and, upon the motion of the district attorney, the bonds of the defendant-witnesses who had failed to appear were forfeited and a bench warrant issued. The case was continued to 10 o'clock the next morning over the objection of the appellant. The next morning, May 4, the district attorney announced his inability to go to trial, and indicated his belief that the defendants had fled. The district attorney requested a continuance until the July calendar. The court denied this request, but continued the case until Tuesday, May 8, at which time the jury was discharged, as hereinbefore stated.

The district attorney, upon his own suggestion, proceeded with the impanelment of the jury on May 3 without having ascertained whether or not his witnesses were present. Nothing was done by the defendant at that time which would prevent his raising the question of former jeopardy. The fact is that, when the district attorney impaneled the jury without first ascertaining whether or not his witnesses were present, he took a chance. While their absence might have justified a continuance of the case in view of the fact that they were under bond to appear at that time and place, the question presented here is entirely different from that involved in the exercise of the sound discretion of the trial court in granting a continuance in furtherance of justice. The situation presented is simply one where the district attorney entered upon the trial of the case without sufficient evidence to convict. This does not take the case out of the rule with reference to former jeopardy. There is no difference in principle between a discovery by the district attorney immediately after the jury was impaneled that his evidence was insufficient and a discovery after he had called some or all of his witnesses. It is uniformly held that, in the absence of sufficient evidence to convict, the district attorney cannot by any act of his deprive the defendant of the benefit of the constitutional provision prohibiting a person from being twice put in jeopardy for the same offense. Ex parte Lange, 18 Wall. (85 U. S.) 163, 21 L. Ed. 872; Const. Amend. 5; Jarl v. U. S. (C. C. A.) 19 F.(2d) 891. In U. S. v. Shoemaker, 27 Fed. Cas. 1067, No. 16279, 2 McLean, 114, this question was fully discussed, and it was held that, where the district attorney entered a nolle prosequi after the jury had been impaneled and witnesses sworn, jeopardy had attached.

In U. S. v. Watson, Fed. Cas. No. 16651, where the case was continued after the impaneling of the jury, a juror was withdrawn from the box and the jury discharged on account of the illness of the district attorney and the absence of witnesses for the prosecution. It was held that jeopardy attached and the defendant could not be retried. It is also held in Hipple v. Texas, 80 Tex. 531, 191 S. W. 1150, L. R. A. 1917D, 1141; Pizano v. State, 20 Tex. App. 139, 54 Am. Rep. 511; People v. Barrett, 2 Caines (N. Y.) 304, 2 Am. Dec. 239; State v. Richardson, 47 S. C. 166, 25 S. E. 220, 35 L. R. A. 238, and in Allen v. State, 52 Fla. 1, 41 So. 593, 120 Am. St. Rep. 188, 10 Ann. Cas. 1085, that...

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