Matthews v. United States

• Decision Date: 11 June 1924
• Docket Number: 3368.
• Citation: 300 F. 556
• Parties: MATTHEWS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

300 F. 556

MATTHEWS et al. v. UNITED STATES.

No. 3368.

United States Court of Appeals, Seventh Circuit.

June 11, 1924

McCawley Baird and C. B. Thomas, both of East St. Louis, Ill., for plaintiffs in error.

Lawrence T. Allen, of Danville, Ill., for the United States.

Before EVANS and PAGE, Circuit Judges, and FITZ HENRY, District Judge.

PAGE Circuit Judge.

The indictment charges conspiracy to commit an offense by the unlawful manufacture, etc., of intoxicating liquors. Several overt acts are charged, followed by what was probably intended by the grand jury to be an overt act, but which in fact charges an unlawful sale of intoxicating liquors.

1. It is urged that the two complete offenses charged in one count make the whole indictment bad because of duplicity. Plaintiffs in error, here called defendants, were represented by different attorneys, Marsh by McGlynn, and Matthews by Thomas. Each made a formal motion to quash, stating he did not care to argue it.

'The Court: Anything seriously wrong with this indictment?

'McGlynn I thought so at one time, but not now.'

Thomas for Matthews, made no reply, and the motion was overruled. In the instructions, the court told the jury that the 'indictment * * * is one charging a conspiracy to commit an offense against the United States. ' Under the circumstances, it is immaterial whether the count was duplicitous or not. Lewellen v. U.S. (8th C.C.A.) 223 F. 18, 20, 138 C.C.A. 432, and Supreme Court cases there cited.

2. There was no error in refusing to grant a continuance because of the absence of the witness Shoulders. Instead of procuring attendance of Shoulders by subpoena, defendants relied upon an alleged agreement made with him out of court, which he did not keep.

3. After charging conspiracy, several overt acts are set out, in one of which it is alleged that, pursuant to the conspiracy the defendants transported intoxicating liquor in the county of St. Clair, in the state of Illinois, and within the jurisdiction of the United States courts for the Eastern district of Illinois. There is much evidence that the defendants were the chief actors in the conspiracy charged in the indictment. There is also conclusive evidence that a still, such as is described in the first over act named in the indictment, was established and in operation on the defendant Matthews' farm in Madison county, in the Southern district of Illinois. There is also evidence of liquor sales by Marsh to various parties and at various places in St. Clair county, which is in the Eastern district of Illinois. In his affidavit for continuance, Marsh states:

'This defendant did, through the procurement of the said N. S. Shoulders and J. E. Early, do and perform those matters and things with which he is herein charged and for which he has been indicted.'

And the affidavit of defendant Matthews contains substantially similar statements on his part. Clearly there is sufficient proof to sustain the charge of conspiracy and of overt acts within the jurisdiction of the court.

4. Matthews excepted to the court's instruction on the question of what is entrapment. The evidence shows beyond question that defendants Marsh and Matthews were old offenders against the prohibition law, and that they were not induced, as innocent parties, to enter...