Miller v. United States, 6027.

• Decision Date: 09 February 1931
• Docket Number: No. 6027.,6027.
• Citation: 47 F.2d 120
• Parties: MILLER v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

47 F.2d 120 (1931)

MILLER v. UNITED STATES.^*

No. 6027.

Circuit Court of Appeals, Ninth Circuit.

February 9, 1931.

Robert McMillan and J. Fred McDonald, both of San Francisco, Cal., and Leo A. Sullivan, of Oakland, Cal., for appellant.

Geo. J. Hatfield, U. S. Atty., and Albert C. Wollenberg, Asst. U. S. Atty., both of San Francisco, Cal.

Before RUDKIN and WILBUR, Circuit Judges, and KERRIGAN, District Judge.

KERRIGAN, District Judge.

Appellant, Clyde R. Miller, and thirteen others were indicted for conspiracy "to commit prohibited and unlawful acts of manufacturing, transporting, possessing, and selling alcohol, whisky, wine and beer." Of the seven defendants convicted, Miller alone appeals.

Appellant, when called upon to plead, moved the court for an order requiring the United States to file a bill of particulars as to certain matters sought to be alleged in the indictment. He also interposed a demurrer to the indictment. The demurrer was overruled, and the motion for a bill of particulars was denied, except for one specification.

At the trial, appellant did not claim any surprise arising from unexpected particulars in the proof offered by the prosecution, nor did he request a continuance to meet such unexpected particulars. In the absence of a showing that substantial rights were prejudiced by the refusal of those portions of the requested bill of particulars which were denied, appellant has no ground for complaint as to the exercise of its discretion by the court below in this regard. Rubio v. U. S. (C. C. A.) 22 F.(2d) 766; Robinson v. U. S. (C. C. A.) 33 F. (2d) 238; Wong Tai v. U. S., 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545.

In attacking the indictment, appellant in effect construes it as charging a conspiracy "to commit prohibited and unlawful acts," without more; and alleges that, as so construed, it charges a mere conclusion of law. It appears, however, that the charge is that defendants conspired to commit "acts of manufacturing, transporting, possessing and selling alcohol, whiskey, wine and beer." The words "prohibited and unlawful" serve merely to negative the possibility that certain of the acts charged as objects of the conspiracy might concern lawful dealings with liquors, and to make it clear that these acts are contrary to law. This indictment satisfies the requirement that the offenses which the defendants conspired to commit be identified with certainty, and is sufficient. Wong Tai v. U. S., 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545; Gibson v. U. S. (C. C. A.) 31 F.(2d) 19.

At the commencement of the trial, the United States attorney filed a nolle prosequi as to one of the overt acts set forth in the indictment. This is assigned as error. The several overt acts, however, are divisible parts of the indictment, and, as such, may be removed from the case by a motion to dismiss or by the entry of a nolle prosequi by the United States attorney, provided that at least one overt act remains to be proved to establish the conspiracy charged. Dealy v. U. S., 152 U. S. 539, 14 S. Ct. 680, 38 L. Ed. 545; U. S. v. Rossi (C. C. A.) 39 F.(2d) 432.

The chief contention upon this appeal is as to the admission of certain evidence, which is said to have been outside the scope of the conspiracy, made up of statements, declarations, and conversations not in furtherance of the objects of the conspiracy, and evidence of other crimes and offenses than that for which appellant was being tried. A brief statement of the main outlines of the conspiracy as disclosed by the record will be of assistance in determining the admissibility of this evidence. It appears that a chain of establishments where various liquors were sold was in operation in the city of Oakland. One of the conspirators was the financial backer, another the brewer of the "high proof" beer supplied to these places, a third supplied alcohol, while yet others...