Linden v. United States

• Decision Date: 09 January 1924
• Docket Number: 3019.
• Parties: LINDEN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

296 F. 104

LINDEN et al. v. UNITED STATES.

No. 3019.

United States Court of Appeals, Third Circuit.

January 9, 1924

James R. Nugent and Joseph Randolph Woodruff, both of Newark, N.J for plaintiffs in error.

Walter G. Winne, U.S. Atty., of Hackensack, N.J., and Richard C Plumer, Asst. U.S. Atty., of Newark, N.J.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY Circuit Judge.

On the night of January 11, 1923, Linden, Coose, and Philbrook were running a boat loaded with whisky on the Shrewsbury river inside of Sandy Hook. They were overtaken by two inspectors of customs and arrested. Later the three men were tried on an indictment containing five counts, the first charging conspiracy (under section 37 of the Criminal Code (Comp. St Sec. 10201)) to violate section 593 of chapter 356 of the Laws of 1922 (Comp. St. Ann. Supp. 1923, Secs. 5841h12 5841h13); the second and third, violations of the cited section and chapter; the fourth, conspiracy (under the same section of the Criminal Code) to transport intoxicating liquor; and the fifth, transportation of intoxicating liquor in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, Sec. 10138 1/4 et seq.). The jury found them not guilty on the first, second and third counts and guilty on the fourth and fifth counts. Sentences of imprisonment were imposed under one count and of fines under the other. Thereupon the defendants sued out this writ of error.

The assignments of error present, in the main, questions repeatedly raised and decided in cases of this character. All these are resolved against the plaintiffs in error. There is, however, one assignment out of the ordinary. Having its rise, doubtless, in an inadvertence on the part of the learned trial judge, it is directed to that part of his charge in which he called the attention of the jury to the fact that the evidence for the prosecution had not been contradicted. As the defendants did not take the stand and contradict the government's evidence, they maintain, upon an exception seasonably taken, that the comments of the judge created a presumption against them and thereby deprived them of the protection afforded by the Act of Congress of March 16, 1878, 20 Stat. 30, c. 37 (Comp. Stat. Sec. 1465). ^[1] What the judge said was this

'Take up the fifth count first-- I think that will be the better way to start with this proceeding. That relates to a specific act charging these defendants with the crime of unlawful transportation of liquor. That is what it charges, in substance. You will find, of course, that the count is more wordy than that, but in substance it charges these men with transporting of intoxicating liquor fit for beverage purposes. Now, as to that count there is very little to be said. If you believe the evidence, and there is no contradiction of it at all, these three men were caught in a boat on the Shrewsbury River, in what is called the Cove between the Highlands and Sandy Hook, with a lot of intoxicating liquor on board. You heard the testimony with reference to that. Now, there is not any evidence at all in explanation of that transaction, and there you have the bare facts. I don't understand that counsel for the defendant makes any serious contention in that regard, but that they had this liquor on board, and therefore are guilty of the crime of transportation, unlawful transportation. At any rate, that is the evidence, and if I am in error as to his lack of contention in that particular or what he is ready to concede, it is for you to say upon that evidence whether that count has not been established. There was the intoxicating liquor. On the testimony it was fit for beverage purposes; it contained so much alcohol and so much water.'

The defendants do not question the rule, now well settled in federal courts, that a trial judge may sum up the facts to a jury, and express an opinion...