Leverkuhn v. United States

• Decision Date: 25 March 1924
• Docket Number: 4111.
• Citation: 297 F. 590
• Parties: LEVERKUHN v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Fifth Circuit

297 F. 590

LEVERKUHN v. UNITED STATES. ^[1]

No. 4111.

United States Court of Appeals, Fifth Circuit.

March 25, 1924

H. E Kahn, of Houston, Tex.(Mathis, Heidingsfelder, Teague &amp Kahn, J. V. Meek, and C. E. Heidingsfelder, all of Houston Tex., on the brief), for plaintiff in error.

H. M Holden, U.S. Atty., of Houston, Tex. (E. R. Warnken and Horace Soule, Asst. U.S. Attys., both of Houston, Tex., on the brief), for the United States.

Before WALKER and BRYAN, Circuit Judges, and CALL, District Judge.

WALKER Circuit Judge.

The first count of the indictment in this case charged as follows:

'That one J. H. Leverkuhn, alias Jack Leverkuhn, and other persons to the grand jurors unknown, late of Harris county, state of Texas, district, division, and circuit aforesaid, on or about the 18th day of June, A.D. 1922, in said county, state, district, division, and circuit, did unlawfully, willfully, knowingly, and fraudulently conspire, confederate, and agree together and among themselves to commit an offense against the United States, to wit, to possess, sell, and transport intoxicating liquor without first having obtained a permit from the Commissioner of Internal Revenue to possess, sell, and transport intoxicating liquor.The said J. H. Leverkuhn, alias Jack Leverkuhn, was to operate a place at 612 Preston avenue in the city of Houston, state of Texas, known as the Houston Benevolent, Charitable and Educational Society, and that at some date the said J. H. Leverkuhn, alias Jack Leverkuhn, and the unknown parties secured a charter from the state of Texas to operate such a place, the exact nature being unknown to the grand jurors, and the said J. H. Leverkuhn, alias Jack Leverkuhn, and the unknown parties, were to secure, possess, sell, and barter intoxicating liquors on the said premises by the drink, operating the place as a place where intoxicating liquors might be bought by persons who were or claimed to be members of the said club.

'And the grand jurors aforesaid, upon their oaths aforesaid, do further present: That in pursuance of the aforesaid unlawful conspiracy, combination, confederation, and agreement, and to effect the object and purposes of same, the said J. H. Leverkuhn, alias Jack Leverkuhn, and other persons to the grand jurors unknown, did unlawfully and fraudulently procure, possess, transport and sell intoxicating liquor by the means aforesaid, and on or about the 18th day of June, A.D. 1922, did transport and possess about one gallon of intoxicating liquor in the city of Houston, state of Texas, and on or about the 25th day of January, A.D. 1923, in the manner and by the means aforesaid, did procure, sell, and possess intoxicating liquors at the said club on the premises at 612 Preston avenue, Houston, Texas, in amounts to the grand jurors unknown, and on or about the 23d day of February, A.D. 1923, in the manner and by the means aforesaid, did procure, sell, and possess intoxicating liquors on the said premises at 612 Preston avenue in the city of Houston, state of Texas, in a quantity to the grand jurors unknown, 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.'

In the trial of the casethe defendant offered to prove by the assistant district attorney, who represented the government before the grand jury in the matter of the indictment in this case, that the grand jury knew, before and at the time of the finding of the indictment, who were the other persons alleged in the indictment to be unknown to the grand jury, and knew at said time who the parties were that secured the charter for said Benevolent Society.The government objected to the testimony so offered on the ground that it was irrelevant and immaterial.The defendant excepted to the action of the court in sustaining that objection.

To say the least, it is questionable whether, in the absence of a statute giving a right to do so, a defendant in an indictment is entitled to impeach it by proving what occurred before the grand jury at the time of or prior to the finding of the indictment.Noll v. Dailey,72 W.Va. 520, 79 S.E 668, 47 L.R.A. (N.S.) 1207;Rosen v. United States,161 U.S. 29, 35, 16 Sup.Ct. 434, 40 L.Ed. 606;14 R.C.L. 205.It may be assumed, without being decided, that, where a statement of the name of a person other than the defendant is a material part of the description of the crime charged, it is permissible for the defendant to prove that the name of such...