Dillon v. United States

• Decision Date: 14 December 1921
• Docket Number: 66.
• Citation: 279 F. 639
• Parties: DILLON v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

279 F. 639

DILLON v. UNITED STATES.

No. 66.

United States Court of Appeals, Second Circuit.

December 14, 1921

Walter Welch, of Syracuse, N.Y., for plaintiff in error.

Clarence E. Williams, U.S. Atty., of Utica, N.Y., and Hiram C. Todd U.S. Atty., of Saratoga Springs, N.Y.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS Circuit Judge.

The decision of this court in this case was announced at the conclusion of the argument. We at that time, however, stated that we might later file a written opinion, giving our reasons for concluding that the judgment should be affirmed. This we now proceed to do.

The plaintiff in error, hereinafter referred to as the defendant was on February 15, 1921, convicted of a violation of section 3, title 2, of the National Prohibition Act of October 28 1919 (41 Stat. 308), otherwise known as the Volstead Act. He was sentenced to pay a fine of $400 and to stand committed to jail until the fine was paid. Whether the Prohibition Law can be effectively enforced by imposing small fines, or even large fines, instead of jail sentences, upon those who are convicted of violating its provision, is a question for the trial judges themselves to determine, and they are clothed with a solemn responsibility in connection therewith. The question is one upon which this court expresses no opinion as it is one which we are without authority to review. It is a trite saying that it is absolutely essential to the preservation of the social system in a civilized state that the laws of the land should be enforced. The responsibility for this enforcement rests, not alone upon jurymen and prosecuting officers, but in a large measure upon judges as well. It is perhaps unnecessary to observe, what the judges very well know, that the sentences which they impose, within the limits of their discretion, should be sufficiently severe to deter and restrain would-be violators of law from incurring the risk involved.

The defendant was convicted under an indictment filed October 19, 1920, which contained a single count reading as follows:

'That on the 23d day of September, 1920, at Marcellus, N.Y., within the jurisdiction of this court, Edward J. Dillon did willfully and unlawfully have in his possession and under his control certain intoxicating liquors, to wit, 17 gallons of whisky, contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States of America.'

It was indorsed:

'Violation Sec. 3, Title 2, N.P.A. Possession of Distilled Spirits-- A true bill.'

The indorsement according to our decision in Maresca v. United States, 277 F. 727, constituted no part of the indictment.

The material portions of the National Prohibition Act, so far as it is necessary to consider them in this connection, may be found in the margin. ^[1]

In his charge to the jury the District Judge took occasion in an admirable manner to impress them with the duty which rests upon all juries called upon to pass upon violations of this law. A portion of that part of his charge may be found in the margin. ^[2] The charge, therefore, is that the defendant, on September 23, 1920, willfully and unlawfully had in his possession and under his control, at Marcellus, N.Y., 17 gallons of whisky

The statute (section 33) declared that after February 1, 1920, the possession of liquors by any person not legally permitted under the act to possess liquor 'should be prima facie evidence that such liquor is kept for the purpose of being sold, * * * given away, furnished, or otherwise disposed of in violation of the' act. As the liquor was in defendant's possession on September 23, 1920, his possession was subject to the act.

In the course of his charge the District Judge used the following language:

'Now you have heard this case. The court's opinion is that the defendant is guilty of the crime charged. In a federal court the court may inform the jury what his opinion is of the guilt or innocence of the defendant, but I want you to understand the question of his guilt or innocence is solely for the jury to decide. It is not for the court. The court has no part in deciding the guilt or innocence of the defendant, but the court may, if it seems desirable, inform the jury of his opinion. Now, gentlemen, you will take this case. You have a duty, a public duty, to perform, to decide this case upon your oaths and your responsibility; to decide on your conscience; to decide whether or not this man had whisky unlawfully in his possession.'

The defendant insists that this deprived him of his constitutional right to a jury trial; that it was in effect a direction of a verdict of guilty, and made a jury trial an idle and useless ceremony. He relies upon certain cases to some of which we shall now refer.

In Breese v. United States, 108 F. 804, 48 C.C.A. 36, the Judge told the jury 'that, in his opinion, it was the duty of the jury to convict the defendant. ' A new trial was granted, on the ground that it was calculated to mislead the jury, who might have construed the language as a direction on the part of the court to find the defendant guilty. So in Cummins v. United States, 232 F. 844, 147 C.C.A. 38, the judge told the jury that the evidence was legally conclusive against the defendant. A new trial was granted, as the court might as well have directed a verdict against the defendant, and did in so many words.

In Rudd v. United States, 173 F. 912, 97 C.C.A. 462, the defendant was charged with having used the mails to defraud. He was endeavoring to make sales of a patented machine. The defendant admitted at the trial that the machine was impracticable, and the prospectus untrue, but claimed that he did not know it at the time. The judge impressed upon the jury that any man with the slightest degree of intelligence above insanity would know that the machine was impracticable. He afterwards withdrew the statement, and told the jury the question was for them. A new trial was granted, and it was said that the remarks of the court might have led the jury to believe that a finding for the accused would have subjected them to ridicule.

In Sandals v. United States, 213 F. 569, 130 C.C.A. 149, it was claimed that some portions of the instructions were such as to prevent the jury from exercising a free and independent judgment, and the appellate court shared in that view of the matter, and directed a retrial. But in doing so the court quoted with approval a statement by Judge Hook in the Rudd Case, supra, in which he said:

'We do not mean to impair in any degree the right of a trial court in both civil and criminal cases to comment upon the facts, to express its opinion upon them, and to sum up the evidence, for that is one of the most valuable features of the practice in the courts of the United States. A judge should not be a mere automatic oracle of the law, but a living participant in the trial, and so far as the limitations of his position permit should see that justice is done. But his comments upon the facts should be judicial and dispassionate, and so carefully guarded that the jurors. who are the triers of them, may be left free to exercise their independent judgment.'

These cases are all of them clearly distinguishable from the case now before us. In the cases referred to the judge had encroached unduly upon the province of the jury, but this was not done in the instant case, in which the jury could not have been misled, and was properly informed that the question of guilt or innocence was one solely for the jury to decide. It is true that in a criminal case a court cannot direct a verdict of guilty, and that it cannot do indirectly what it has no power to do directly. The court cannot direct a verdict of guilty, although no fact is in dispute. United States v. Taylor (C.C.) 11 F. 470; Atchison, etc., Ry. Co. v. United States, 172 F. 194, 96 C.C.A. 646, 27 L.R.A. (N.S.) 756. But, whatever the rule may be in the state courts, it is well-established law, which this court has no right or inclination to depart from, that in the federal courts the trial judge is entitled to express his opinion upon the facts and the guilt or innocence of the accused, provided the jury is given unequivocally to understand that it is not bound by the expressed opinion of the judge.

This court has held in a number of cases that a District Judge has the right to express his own opinion of the facts to the jury. Soblowski v. United States (C.C.A.) 271 F. 294; Johnson v. United States (C.C.A.) 270 F. 168; Oppenheim v. United States, 241 F. 625, 629, 154 C.C.A. 383; Hart v. United States, 84 F. 799, 28 C.C.A. 612. See, to same effect, Menefee v. United States, 236 F. 826, 150 C.C.A. 88; Perkins v. United States, 228 F. 408, 142 C.C.A. 638; Shea v. United States, 251 F. 440, 446, 163 C.C.A. 458; cert. denied 248 U.S. 581, 39 Sup.Ct. 132, 63 L.Ed. 431; Morse v. United States, 255 F. 681, 682, 167 C.C.A. 57; Savage v. United States (C.C.A.) 270 F. 14, 21; Keller v. United States, 168 F. 697, 698, 94 C.C.A. 368; Smith v. United States, 157 F. 721, 732, 85 C.C.A. 353; Kettenbach v. United States, 202 F. 377, 120 C.C.A. 505. The decisions of the Supreme Court are to the same effect. Horning v. District of Columbia, 254 U.S. 135, 139, 41 Sup.Ct. 53, 65 L.Ed. 185; Allies v. United States, 155 U.S. 117, 15 Sup.Ct. 36, 39 L.Ed. 91; Hyde v. United States, 225 U.S. 347, 32 Sup.Ct. 793, 56 L.Ed. 1114, Ann.Cas. 1914A, 614; Andersen v. United States, 170 U.S. 481, 18 Sup.Ct. 689, 42 L.Ed. 1116.

It is assigned for error that the court charged the jury that the defendant's possession of the liquor was unlawful, he not having reported it within 10 days. The court charged as follows:

'Now, this law provided that, if any

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