Huth v. United States

• Decision Date: 08 January 1924
• Docket Number: 3828.
• Citation: 295 F. 35
• Parties: HUTH et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

295 F. 35

HUTH et al. v. UNITED STATES.

No. 3828.

United States Court of Appeals, Sixth Circuit.

January 8, 1924

Walter P. Lincoln, of Louisville, Ky. (Edwards, Ogden & Peak and Beckham, Hamilton & Beckham, all of Louisville, Ky., on the brief), for plaintiffs in error.

Sawyer A. Smith, U.S. Atty., of Covington, Ky. (John E. Shepard, and Rodney G. Bryson, both of Covington, Ky., and Henry S McGuire, Asst. U.S. Attys., of Lexington, Ky., on the brief) for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DENISON Circuit Judge.

The three plaintiffs in error were jointly indicted, along with Hawkins and Sweasy, upon an indictment containing four counts. Counts 1 and 2 charged conspiracy to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, Sec 10138 1/4 et seq.) by (count 1) transporting and (count 2) possessing intoxicating liquor. The others charged the substantive offense of (count 3) transporting and (count 4) possessing intoxicating liquor. The three plaintiffs in error were convicted on all four counts; the remaining two, upon counts 3 and 4 only. These two paid the fines imposed upon them.

Objection was made in due form, but overruled, as to the sufficiency of the indictment. The objection was that it was in such general form that it did not identify the offenses charged. This indictment goes to the extreme in its reliance upon general terms; but, in connection with the bill of particulars furnished by the government, the District Court held it to be sufficient. We affirm this holding, but do so because of the peculiar character of the situation set out in the bill of particulars upon which the government intended to rely, and, having done so, we are compelled to regard the same character of offense as the one which the government must prove on the trial.

The first count (typical in this respect) charges that the respondent--

'on or about the 17th day of November, 1921, and before the finding of this indictment, in said Eastern district of Kentucky, did unlawfully, willfully, and feloniously conspire to commit an offense against the United States; that is, to then and there willfully and unlawfully transport certain intoxicating liquors, to wit, whisky, the said transporting of such intoxicating liquors being then and there prohibited and unlawful.'

This form would be sufficient to raise the necessary implication that the transportation was without a permit. Albert v. U.S. (C.C.A. 6) 281 F. 511, 514. We assume, for the purposes of this opinion, that, owing to the positive and simple character of the object involved, it would not be necessary further to define the nature of the conspiracy, and we may likewise assume that the constitutional protection against subsequent prosecution for the same offense would extend to any offense which might have been proved under the indictment, and thus make effectual the guaranty against second jeopardy. It is more difficult to meet the objection that the indictment gave no such information as would enable the defendant fairly to prepare for trial. This is perhaps the very situation which gives legitimate office to a bill of particulars. The bill here furnished stated in substance that the possessing charged was in and about the premises and vicinity of the Belle of Anderson distillery, and that the transportation charged was from those premises to other places unknown to the United States. It further stated that the government was unable to make better specification as to times or places, for the reason that their details were all in the possession of the defendants and should have been kept upon the distillery records accessible to the government agents, but that such records were not kept or accessible, but were concealed by defendants, in order to prevent the government from making more definite allegations.

The indictment and bill of particulars may be further interpreted by the opening proofs upon the trial. The government made its prima facie case by showing that the defendants were in control of the distillery; that such records as were available showed that during the few months before November 17, 1921, over 5,000 cases of whisky went from the distillery into the free warehouse; that on November 17th the warehouse was practically empty; and that there were no records to show what had become of these 5,000 cases. This being the general character of the offense which, as shown by the bill of particulars and the proofs, the indictment was intended to charge, we are satisfied to hold that greater particularity as to time, place, and other details of the offenses planned or committed, was not necessary.

It is argued that the violations of law here involved depend upon extending the prohibition and regulations of the Volstead Act to nonbeverage liquor, and that such extension is not authorized by the Eighteenth Amendment, which deals with beverage liquors only. It is true that the express prohibition of the amendment carries a primary limitation to intoxicating liquor and a secondary limitation to intoxicating liquor for beverage purposes. It is fully decided that this primary limitation is not inconsistent with the regulation and even prohibition of nonintoxicating liquor, so far as Congress may think they are reasonably incidental to making effective the prohibition of intoxicating liquor. Ruppert v. Caffey, 251 U.S. 264, 282, 40 Sup.Ct. 141, 64 L.Ed. 260; National Prohibition Cases, 253 U.S. 350, 387, 40 Sup.Ct. 486, 588, 64 L.Ed. 946. The same principle applies with even greater force to the secondary limitation mentioned, and compels us to overrule the contention now urged.

In indictments depending upon acts positively forbidden in the exercise of the police power, 'when the emphasis of the statute is evidently upon the achievement of some social betterment,' it is not necessary to show the express intent to break the law. U.S. v. Balint, 258 U.S. 250, 252, 42 Sup.Ct. 301, 66 L.Ed. 604. This rule plainly covers the present case, and the indictment is not bad because lacking statement of respondents' intent.

The remaining matter needing attention is the claim that there was no sufficient evidence to support the verdict. After the prima facie case above described had been made, and some witnesses had testified to various incidents, the government produced the truckman who on November 17th was engaged in moving the two truckloads of bottled whisky, which were then seized by the prohibition officers. Not only was he the government's witness, but no suggestion of impeachment or contradiction seems to have been made. Thereupon Mr. Hawkins one of the defendants, testified for the defendants. From his testimony it appeared that he had been the superintendent and active manager of the distillery and free warehouse during this period; that he had kept the records required by law and the regulations, unless with minor exceptions; that he had made his own office in the nearest town to the distillery office for business purposes, and had kept there the chief records, for which there...