Mendelson v. United States, 5480.

• Decision Date: 04 April 1932
• Docket Number: No. 5480.,5480.
• Citation: 61 App. DC 127,58 F.2d 532
• Parties: MENDELSON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

61 App. DC 127, 58 F.2d 532 (1932)

MENDELSON et al. v. UNITED STATES.

No. 5480.

Court of Appeals of the District of Columbia.

Argued March 7, 1932.

Decided April 4, 1932.

Rehearing denied April 23, 1932.

E. Russell Kelly and Myron G. Ehrlich, both of Washington, D. C., for appellants Mendelson and La Bolo.

T. Morris Wampler, of Washington, D. C., for appellants Lerner and Kushner.

James A. O'Shea, of Washington, D. C., for appellant Corbin Shields.

Charles E. Ford, of Washington, D. C., for appellant Jack Baum.

Leo A. Rover, James R. Kirkland, and John J. Wilson, all of Washington, D. C., for the United States.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, and GRONER, Associate Justices.

GRONER, Associate Justice.

This case originated in an indictment against twenty-two defendants for conspiracy to violate the prohibition law. Four pleaded guilty; four were not tried, three being fugitives; there was a directed verdict in the case of two; one was acquitted; and eleven convicted. Five of those convicted accepted sentence. Six have appealed. The cases of five of these six we regard as identical and shall speak of them hereafter as defendants. The case of one of them, Shields, we shall discuss separately.

The indictment charges a conspiracy to unlawfully transport intoxicating liquors from within and without the District of Columbia, and, more specifically, the transportation of liquors from named points in Maryland to designated addresses in the city of Washington, and to unlawfully possess the liquor and to unlawfully solicit its sale, and to unlawfully maintain a place in which it was stored and from which it was sold, and concludes with a number of overt acts within the District of Columbia. A demurrer and a motion to quash were overruled, and one of the defendants made a motion for a bill of particulars, which was likewise overruled. The action of the court in these respects is assigned as error.

The ground of the demurrer is that the indictment does not sufficiently charge an offense, but we think it does. While it is not as "wide as a barn nor as deep as a well," we think it sufficiently charges the conspiracy and its unlawful purposes and facts from which it sufficiently appears that the object of the conspiracy was the commission of offenses against the United States, and we think these offenses are described with sufficient certainty and detail not only to apprize the defendant of the nature of the charge against him, but with enough particularity to make effective a plea in bar should he be subsequently prosecuted for the same offense. This is all that is necessary. See Malinow v. United States (C. C. A.) 42 F.(2d) 374.

We think also that the action of the court was correct in overruling the motion filed in behalf of one of the defendants for a bill of particulars. The motion requested a statement of the facts relied upon to support the allegations of the overt act charged against this defendant and also the facts relied upon to connect the defendant with the conspiracy. To require the prosecution to make such a statement as this is not ordinarily the function of a bill of particulars. The overt act as alleged is that this defendant on the 25th day of February, 1930, in the District of Columbia, and during the existence of the conspiracy, caused a large quantity of liquor to be brought from the state of Maryland into the District of Columbia. To require the prosecution to state in detail the exact point in Maryland or the exact point in the District of Columbia would be to require it to discover its entire case and the evidence upon which it would rely. The charge included the time and in a general way the place and transportation. This, we think, was enough. And the same answer suffices for the second ground. See Dunbar v. United States, 156 U. S. 185, 15 S. Ct. 325, 39 L. Ed. 390; Rubio v. United States (C. C. A.) 22 F.(2d) 766. Regardless of this, we would not reverse on this ground unless satisfied that appellant was taken by surprise in the course of the trial or that his rights were prejudiced, and this does not appear. See Wong Tai v. United States, 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545.

The next assignment of error relates to the refusal of the court to grant certain asked prayers, and also to certain remarks of the court to the jury, which it is said were objectionable. We find no error in either respect.

The general charge made by the court to the jury adequately covered all of the specific points raised in behalf of any of the defendants, and at its conclusion the only point made by any of counsel was the failure of the court to give a specific instruction asked on the subject of the weight, etc., to be given the evidence of accomplices. Most of the instructions asked relate to the presumption of innocence and the definition of reasonable doubt. The language used by the court in charging on these matters amply covered both subjects, and was in the form almost habitually used in relation to them. The remarks of the court which are criticized relate to the two defendants as to whom binding instructions were given, and the judge, in telling the jury to find them not guilty, said that, after a careful examination and review of the evidence, he was of opinion that it was not sufficient to justify a conviction as to them. This seems to us an entirely proper way in which to acquaint the jury with the fact that their duty was to acquit these two defendants, and, if the others who were not freed suffered any prejudice because of it, it grew out of their situation as joint defendants rather than the manner in which it was accomplished. But, even if this were otherwise, the record does not show that any exception was taken to the remarks of the court, which in itself would make it improper to review the question. See our opinion in Norman v. United States, 20 App. D. C. 494, 497, in which we said: "It would not be fair to the court or to the jury, or to the parties to the cause, to permit it the court's charge to pass unchallenged at the time, and then on account of it to seek reversal in the appellate tribunal."

The requested charge with relation to the testimony of accomplices told the jury that such testimony should not be received as that of an ordinary witness — an ordinary witness of good character whose testimony is generally and prima facie supposed to be correct. Some of the defendants in addition requested that the court caution the jury "about convicting the defendant upon the uncorroborated testimony" of the accomplices — some others, that the jury "would have to inquire into the facts as to whether or not there is corroborating testimony." The court instead charged as follows:

"The court instructs you upon this subject that it is the settled rule in this country that accomplices in the commission of crime are competent witnesses, and that the Government has the right to use them as witnesses. It is the duty of the court to admit their testimony, and that of the jury to consider it. It should be received with caution and scrutinized with care. The degree of credit which should be given such testimony is matter exclusively within the province of the jury. You may as a matter of law convict a person accused of a grave crime upon the uncorroborated testimony of an accomplice, but you should do so only after you have carefully and cautiously scrutinized such testimony."

Whatever may have been said on this subject before in prior cases, there is no longer any doubt that a jury may convict on the uncorroborated testimony of accomplices. Caminetti Case, 242 U. S. 470, 37 S. Ct. 192, 198, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168. While this is so, the better practice is, as the Supreme Court said in the last-mentioned case, to caution juries "to require corroborating testimony before giving credence to such evidence." We therefore had occasion to say in Borum v. United States, 61 App. D. C. 4, 56 F.(2d) 301, 305, speaking of the testimony of accomplices, that "the court should, of its own motion, have cautioned the jury to weigh it carefully and not to give it too much reliance."

In the present case, as we have already seen, the judge told the jury to receive the testimony with caution and scrutinize it with care, and,...