Gibson v. United States

• Decision Date: 18 March 1929
• Docket Number: No. 5464.,5464.
• Citation: 31 F.2d 19
• Parties: GIBSON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

31 F.2d 19 (1929)

GIBSON et al. v. UNITED STATES.

No. 5464.

Circuit Court of Appeals, Ninth Circuit.

February 11, 1929.

Rehearing Denied March 18, 1929.

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E. M. Hayden, M. A. Langhorne, and F. D. Metzger, all of Tacoma, Wash., for plaintiff in error Gibson.

Martin F. Smith, of Hoquiam, Wash., W. W. Mount, of Tacoma, Wash., and A. Emerson Cross, of Seattle, Wash., for other plaintiffs in error and appellants.

Anthony Savage, U. S. Atty., of Seattle, Wash., and John T. McCutcheon, Asst. U. S. Atty., of Tacoma, Wash., for the United States.

Before GILBERT and DIETRICH, Circuit Judges, and NORCROSS, District Judge.

DIETRICH, Circuit Judge.

Appellants, 14 in number, were convicted under an indictment charging them with conspiracy to violate the provisions of the National Prohibition Act (27 USCA).

1. After a trial consuming many days, they for the first time challenged the sufficiency of the indictment by a motion in arrest of judgment. Only defects in matter substance can be reached by such a motion. Banta v. United States (C. C. A.) 12 F.(2d) 765. And emphasis is given to this limitation where, as here, there has been an unusually long and expensive trial. It is highly improbable that, if the defects relied upon in this case were of such character as to be in any wise prejudicial, able counsel for the defendants would have failed to discover them until after the verdict.

The indictment charges that at a specified time and place the defendants and others willfully, unlawfully, and feloniously conspired together "to commit certain offenses against the United States; that is to say, to manufacture, possess, transport, import, sell, * * * intoxicating liquors, to wit, whisky, gin, brandy, rum, wine, * * * and maintained a common nuisance, in violation of sections 3, 6, 21, and 26 of title 2 * * * of the National Prohibition Act, all of which was done with the willful, unlawful, and felonious intent of violating the aforesaid act."

The specific objections are (1) that there is in terms no averment that the manufacture, possession, etc., were to be "felonious and unlawful"; and (2) that, while it is averred that the liquors were to be fit for beverage purposes, it is not alleged that they were intended to be so used. It may be conceded that the pleading is meager and inartistically drawn, but we do not think it is so wanting in substance as to be vulnerable to attack by a motion in arrest of judgment. We cannot see any material difference between an averment that whisky was to be unlawfully manufactured and an allegation that it was to be manufactured in violation of certain specified statutory provisions defining the manufacture as constituting a criminal offense.

As to the second point, we are of the opinion that, even in a charge of a substantive offense under the National Prohibition Act, it is unnecessary to negative the possibility that the alleged unlawful manufacture or sale may have been for a legitimate nonbeverage purpose. Leonard v. United States (C. C. A.) 18 F.(2d) 208. But as bearing upon both objections it is to be borne in mind that, where conspiracy is the gist of the charge, "it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy." Wong Tai v. United States, 273 U. S. 77, 81, 47 S. Ct. 300, 301 (71 L. Ed. 545).

2. Anticipating a protracted trial, the court, following a practice authorized by the Washington statutes, selected and qualified, at the time the jury was impaneled and sworn, a thirteenth or alternate juror. This was done, not only without objection from, but with the express consent of, counsel for defendants. As it turned out, no contingency arose requiring the service of the alternate juror, and just before the instructions he was discharged from further attendance, and took no part in the jury's deliberations, so that in fact he never became a member of the jury. The incident is now for the first time urged as error. There is no federal statute authorizing such a practice, and it is to be conceded that in a federal court a defendant charged with a felony has the right to a trial by jury, and further that by jury is meant a body of 12, and that such right cannot be waived. Const. U. S. art. 3, § 2; Maxwell v. Dow, 176 U. S. 586, 20 S. Ct. 448, 494, 44 L. Ed. 597; Thompson v. Utah, 170 U. S. 343, 18 S. Ct. 620, 42 L. Ed. 1061; Rasmussen v. United States, 197 U. S. 516, 25 S. Ct. 514, 49 L. Ed. 862; Low v. United States (C. C. A.) 169 F. 86, 91.

But here the right so defined and guaranteed was in no wise curtailed; 12 men were regularly selected and sworn as jurors, and they alone constituted the jury from the beginning to the end of the trial. The case, therefore, presents no unusual circumstance, other than that a citizen without interest or bias, and possessed of all the qualifications of a juror, was permitted to sit and associate with the 12 during the period the evidence was being taken. No public interest or constitutional private right was thus invaded, and the point therefore amounts to nothing more than that with defendants' approval such a citizen was permitted to come into close contact with members of the jury. Even were it assumed that defendants had the right to object, the objection would be one which they were competent to waive. Presumably the customary admonition given to jurors that they are not to discuss the issues until the case is finally submitted was heeded by all, and, in truth, actual prejudice is scarcely suggested. Such being the facts, it is unnecessary to decide the general question of the power of federal courts to adopt the alternate juror practice.

3. Over objection the court received in evidence an affidavit made by defendant Curtis in August, 1927, about 6 months after the indictment was returned. Curtis delivered the affidavit to a deputy collector of internal revenue, with the assurance on the part of the deputy that it would be considered only as bearing on affiant's income tax obligations, and would not be used against him in any case pending in court. It is in the nature of a supplementary return, and the statements therein made bear somewhat remotely upon the question of Curtis' guilt. If admissible at all, it was competent only as against him, and accordingly, when it was received in evidence, the court expressly admonished the jury that it was offered only as affecting the issues between him and the government, and was not to be considered as evidence against any other defendant. Though undoubtedly increasing the delicacy of the situation, the reference in the affidavit to defendant Gibson did not necessarily require its exclusion. Kuhn v. United States (C. C. A.) 24 F.(2d) 910, 913; Baugh v. United States (C. C. A.) 27 F.(2d) 257, 259.

We are not impressed by the contention that, because the court, in deference to the rule recognizing the privacy of income tax returns, withheld it from general publicity, and permitted only counsel for defendants and the jury to see and read it, and then ordered it placed in the secret files of the court, with permission to counsel further to examine it, the rights of defendants were in some vague way prejudiced. If it be assumed that the question of a public trial is at all involved, counsel for all defendants expressly consented to the course pursued, and cannot now be heard to complain. 16 C. J. 808.

The deputy collector was incompetent to waive such right, if any, as the government had under the law to make use of the affidavit as evidence, and the remaining question is of such right. By a rule of the Treasury Department (Regulations 69, art. 1091; Treas. Dec. 2962; In re Epstein (D. C.) 300 F. 407; Id. C. C. A. 4 F.2d 529), it is provided that upon the written request of the Attorney General, or one of his assistants, an income tax return or a copy thereof may be furnished by the Commissioner to a United States attorney for use as evidence in any litigation in court, where the United States is interested in the result. Or, if the return is in the possession of a collector, it may, upon the conditions stated, be furnished by him. When the return or a copy thereof is so obtained, its use is to be limited to the purpose for which it is furnished, and unnecessary publicity is to be avoided. The use of returns in legal proceedings with such limitations is also recognized in the President's executive order of April 13, 1926, approving regulations of the Secretary of the Treasury, paragraph 14 of which provides: "In the case of returns or copies thereof furnished by the department for use in legal proceedings only such inspection as necessarily results from such use is permitted." Regulations 69, p. 203. The record shows that, following a telegram from the district attorney to the Attorney General, requesting that authority be secured from the department for the use of the affidavit, a telegram was received by the collector having custody of the affidavit, from the Commissioner, directing him to produce it and to furnish a copy thereof, if a copy was desired by the district attorney. Indulging the presumption of official regularity, we think this was sufficient to warrant what was done.

4. There was no error in admitting the testimony of one Bowers, which in substance was that in the fall of 1925 — within the period covered by the charge — defendants Gibson, the sheriff, and Quinn and Connell, two of his deputies, and numerous other persons, had some kind of a party at a roadhouse, where the witness was "serving drinks and was sort of a roustabout," and that during the time they were there, up to 2 o'clock in the morning, he served a considerable quantity of Johnnie Walker whisky, brought there by the members of the party, and that no one was arrested. While in itself only a remote circumstance, the incident was competent as bearing upon the associations of the...