Duke v. United States

• Decision Date: 25 May 1956
• Docket Number: No. 15882.,15882.
• Citation: 233 F.2d 897
• Parties: T. Green DUKE, Doyle Willbanks, Edwin J. Waters, Curtis H. Fordham, Wesley Fiveash and Jule Rhoden, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

233 F.2d 897 (1956)

T. Green DUKE, Doyle Willbanks, Edwin J. Waters, Curtis H. Fordham, Wesley Fiveash and Jule Rhoden, Appellants, v. UNITED STATES of America, Appellee.

No. 15882.

United States Court of Appeals Fifth Circuit.

May 25, 1956.

COPYRIGHT MATERIAL OMITTED

J. C. McDonald, Fitzgerald, Ga., Jack J. Gautier, Macon, Ga., O. T. Gower, Cordele, Ga., for appellants.

Floyd M. Buford, Asst. U. S. Atty., Frank O. Evans, U. S. Atty., Robert B. Thompson, Asst. U. S. Atty., Macon, Ga., for appellee.

Before HUTCHESON, Chief Judge, and CAMERON and BROWN, Circuit Judges.

HUTCHESON, Chief Judge.

Charged with, and convicted of, being a party to a widespread, far flung, and long lived conspiracy to violate the Internal Revenue laws, the defendants have appealed.

Here, urging three grounds of error,¹ appellants attacking the twenty-two page indictment, with its fifty-eight proliferations in the form of overt acts, as a besom of wrath designed to sweep them to destruction and calculated, by joining in one count offenses and defendants having no reasonable connection with each other, to deprive the hapless defendants so joined of a fair trial, assail the rulings of the court denying their motions to dismiss for severance, and for a directed verdict, as completely erroneous.

Of the errors assigned, for the reasons hereafter briefly stated we reject as completely without merit Assignments of Error Nos. 1 and 2, and Subdivision (1) of Assignment of Error No. 3.

The sufficiency of an indictment must be determined on the basis of practical rather than technical considerations, Hopper v. United States, 9 Cir., 142 F.2d 181. It is sufficient if it apprises the defendant of the offense charged with such definiteness that, if he is later charged with the same offense, he will be in a position to plead double jeopardy, U. S. v. Williams, 5 Cir., 202 F.2d 712; Norris v. United States, 5 Cir., 152 F.2d 808; Sutton v. United States, 5 Cir., 157 F.2d 661.

In a conspiracy charge the conspiracy is the gist of the offense, and as a rule where, as here, it is claimed that there was more than one general conspiracy charged, the claim cannot be tested by a reading of the indictment, its testing must await the conclusion of the evidence. A mere reading of the indictment makes it plain, we think, that in refusing to dismiss it, the court did not err.

Appellants' second ground of error, the refusal to grant the motions for severance, deals with a matter resting in the sound judicial discretion of the trial court. Unless that discretion has been abused the ruling will not be disturbed. Corcoran v. United States, 5 Cir., 229 F.2d 295. It may not be denied, though, that the greater the melee the more nearly the trial of a case approaches the dimensions and character of a Donnybrook Fair with a general laying about the more difficult it is for the individual defendant to make his defense.

In recognition of the fact that this is so, the appellate courts have in individual cases held that a denial of a motion for severance was an abuse of discretion. Discretion is, however, a two way street. It is the right of the government to join in a conspiracy all of those against whom it has, or believes it has, evidence, and it is the duty of the court to permit proper joinder. Only in a case, therefore, where joinder is on its face excessive and unreasonable, and this is not such a case, should the refusal to grant a severance be held reversible error.

Finally, as to appellants' claim that proof of venue was not made, we think they stand no better. If, as we have already declared, the indictment charged one and not several conspiracies and, as will be further stated in the course of this opinion, the proof as to most of the defendants supported the indictment, venue was properly proved. For the evidence overwhelmingly supports the allegation that the conspiracy was formed in the Middle District of Georgia, and that overt acts 5, 33, and 34 were committed in the Macon Division.

We come then to a discussion of subdivision (2) of error three, the ground mainly pressed upon us, that there was a variance between the allegations of the indictment and the proof on the trial, and a verdict should have been directed as to each of the defendants.

As might be expected, with such a burgeoning of overt acts, with so much time and space to compass, and with such a cloud of witnesses, the case dragged its slow length along for weeks, producing more than 3000 pages of testimony. Many of the witnesses testified with comparative brevity. This was not the case, however, with the witness Dorminey, deputy to and the alleged confederate of sheriff Fiveash. Though, or perhaps because, his alleged part in the whole scheme was minuscular, he was examined and cross-examined for 123 pages and was acquitted by the jury, apparently, since it convicted Fiveash, as a tribute to his staying powers as a witness or to his apparently complete incomprehension of what it was all about and the whys and wherefores of his plight. Another witness, David Fitzgerald, the star witness upon whom the government largely relied to show that as to the overt acts the trail of the same serpent was over them all, contributed 200 pages, while the contribution of the undercover agent Dunn was somewhere in between.

As a result of such a trial and such a swearing match as to so many acts, facts, and persons, nobody charged escaped a smearing. If, therefore, our only task was to determine as to each convicted defendant whether there was evidence that in respect of the liquor laws his attitude was not what it ought to have been and that in some way and at some time and place he did something he ought not to have done in connection with violations thereof, we should come easily and at once to the conclusion as to all of the defendants that the judgment must be affirmed.

Since, however, this is not the situation, there is required of us a brief statement of the general principles governing the charging and proof of the offense of conspiracy and the application of the principles to the case made against each defendant to determine if the evidence is...