Miller v. United States

• Decision Date: 03 August 1927
• Docket Number: No. 7744.,7744.
• Citation: 21 F.2d 32
• Parties: MILLER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

21 F.2d 32 (1927)

MILLER v. UNITED STATES.^*

No. 7744.

Circuit Court of Appeals, Eighth Circuit.

August 3, 1927.

Edwin L. Weisl, of Chicago, Ill., and C. N. Jepson, of Sioux City, Iowa, for plaintiff in error.

B. E. Rhinehart, U. S. Atty., of Anamosa, Iowa, Don G. Mullan, Asst. U. S. Atty., of Sioux City, Iowa, and G. P. Linville, of Cedar Rapids, Iowa, for the United States.

Before KENYON, Circuit Judge, and MOLYNEAUX and JOHN B. SANBORN, District Judges.

JOHN B. SANBORN, District Judge.

The plaintiff in error was defendant in the court below, and in this opinion he will be so referred to.

The defendant, together with Frank J. Carpenter, William Rathbun, Alfred Cooper, and Martin C. Knudsen, was indicted, charged with a conspiracy to violate the National Prohibition Act (27 USCA Comp. St. § 10138¼ et seq.). All of the other defendants entered pleas of guilty and, with the exception of Knudsen, testified for the government. The defendant Miller entered a plea of not guilty and was convicted. A motion in arrest of judgment and for a new trial was made, based substantially upon the same errors as are now assigned, and was denied. The defendant sued out a writ of error. The grounds upon which he asks that the judgment and sentence of the court below be reversed and a new trial granted him are as follows:

(1) That the indictment is insufficient.

(2) That one of the jurors was disqualified.

(3) That evidence was admitted as to the contents of a certain letter claimed to have been written by the defendant to John Hoffman.

(4) That the court admitted in evidence, over the objection of the defendant, testimony of the codefendant Carpenter to the effect that Miller's uncle, Herman Galinsky, said, in the presence of Miller and himself, "Do you think we are going to let this young fellow (referring to Herman Miller) go to the penitentiary with all the money we have got?"

(5) That the court admitted in evidence on rebuttal, over objection, the testimony of the codefendant William Rathbun to the effect that Miller had stated in his presence, "For God's sake, don't let anybody know my connection with John Hoffman."

We take up the questions in their order.

1. The defendant contends that the indictment is insufficient because it fails to show a violation of the National Prohibition Act, in that there is no allegation that the "alcohol and moonshine whisky were fit for use for beverage purposes." The indictment charges a conspiracy to manufacture, in violation of the act, intoxicating liquor, to wit, alcohol and moonshine whisky. It is unnecessary to discuss this question because of the fact that it has been already answered adversely to the contentions of the defendant. Davis v. United States (C. C. A.) 274 F. 928; Strada v. United States (C. C. A.) 281 F. 143; Massey v. United States (C. C. A.) 281 F. 293; Hensberg v. United States (C. C. A.) 288 F. 370; Weinstein v. United States (C. C. A.) 11 F.(2d) 505; Belvin v. United States (C. C. A.) 12 F.(2d) 548; Williams v. United States (C. C. A.) 3 F. (2d) 933; United States v. McGuire (D. C.) 300 F. 98; Martin v. United States (C. C. A.) 299 F. 287; Bronstein v. United States (C. C. A.) 17 F.(2d) 12.

2. We are asked to determine that the juror O'Brien was disqualified. Upon his voir dire, he disclosed no prejudice against the defendant. Upon the motion for a new trial there were presented to the court affidavits of David F. Loepp, Clay H. Jensen, and Jacob C. Gleysteen, who were attorneys for the plaintiff in the case of Bergeron v. Travelers' Insurance Co., called for trial at the same term of court and a few days prior t the trial of the defendant. Their affidavits state, in substance: That, upon being examined as to his qualifications to sit in that case, O'Brien had stated, in effect, that he could not be a fair and impartial juror in any case in which intoxicating liquor was involved; that he had no use for any one who drank intoxicating liquor or who was in any way connected with intoxicating liquor; that the case that they were trying was one to recover for accidental death under a policy of accident insurance, the plaintiff claiming that the deceased had been drinking gin supposing it was made of grain alcohol, when in fact it was wood alcohol, and the wood alcohol was taken accidentally. There was also presented the affidavit of Paul H. Mummert, to the effect that Mr. O'Brien had stated to him, with reference to an attorney of a defendant in a case involving an alleged violation of the National Prohibition Act, "I don't think much of him or of any other attorney who would protect a bootlegger." The attorneys for the defendant filed their own affidavit to the effect that, if they had known or been informed of the disqualification of Mr. O'Brien, they would not have accepted him as a juror. In resistance to the motion for a new trial, there were filed by the government the following affidavits: That of Mr. O'Brien to the effect that he is a citizen of the city of Spencer, Iowa, and by occupation a farmer and president of the Farmers' Savings Bank at Fostoria, Iowa; that he was examined as to his qualifications by the attorneys for the plaintiff in the case of Freda Bergeron v. Travelers' Insurance Co. of Hartford, Connecticut (the same case as was referred to in the affidavits of David F. Loepp, Clay H. Jensen, and Jacob C. Gleysteen); that in the examination he at no time stated that he could not be a fair and impartial juror in any cause in which intoxicating liquor was involved, and that at no time in said examination and in response to questions propounded to him did he state that he was so prejudiced against intoxicating liquor that he could not be a fair and impartial juror in any case in which intoxicating liquor was involved. The affidavit of W. Z. Long that he was on the same panel with Mr. O'Brien and that he heard his examination in the case of Bergeron v. Travelers' Insurance Co., and that at no time in the examination did O'Brien state that he could not be a fair and impartial juror in any case in which intoxicating liquor was involved, and that at no time in the examination did he state that he was so prejudiced against intoxicating liquor that he could not be a fair and impartial juror in any case in which intoxicating liquor was involved. The affidavit of L. R. Bellows, another juror on the same panel with Mr. O'Brien, that he heard O'Brien's examination, and that no such statements were made by him upon his examination in the case referred to.

In denying the motion for a new trial, the court said:

"The jury impaneled in the civil case was impaneled but a few days prior to the trial of the case under consideration. The court has a fairly clear recollection of that matter, inasmuch as the court examined the jury for cause in that case; that is, the examination of the jury was in part conducted by the court, and the court recalls the examination of the juror O'Brien. I do not recall it, however, in the language, or in substance of the language in the affidavits filed in support of the motion for a new trial. The juror in that case was apparently cautious. He indicated, in response to certain questions propounded by counsel, that he might be prejudiced in a case such as was suggested to him. The examination was not very prolonged, however. The juror was challenged for cause, and the challenge was not resisted. In those circumstances the court told the juror to stand aside. The questions put to the juror at that time in connection with the case then supposedly about to go on trial, the court does not think indicates that the juror would be a disqualified juror to sit in the case now under consideration. However, the examination of the juror O'Brien on his voir dire in this case was quite full and complete. It showed him to be a qualified juror, and he was not challenged. The court is of opinion that the showing in this case as to the disqualification of this juror is insufficient even though it were rulable, which is doubtful, except in the most extreme cases, to challenge a verdict of a jury on account of the disqualification of a single juror, which was not developed upon his examination, by bringing in the affidavits of parties as to declarations of that juror in the past, not with respect to the case in hand or anything connected with it, but with respect merely to a general subject which is akin to the case. If verdicts could be set aside upon a showing of that kind, few would stand, it seems to me."

The question of the qualification of jurors is peculiarly one for the trial court. The affidavits related to what O'Brien is claimed to have said while being examined as to his qualifications to sit in a case other than this. He denies having made the statements, and is corroborated by two other jurors on the same panel. The court recalled no such statements on his part. We see no reason to disturb the conclusion reached by the trial court.

3. The third assignment of error relates to the admission of the contents of a letter referred to in the testimony of a witness, John Hoffman. It was claimed by the government that John Hoffman was experienced in the distilling of intoxicating liquor, both from mash and from what is commonly known as body rub alcohol; that the defendant procured his services for the other defendants, who were actually engaged in operating or attempting to operate a distillery. Hoffman testified for the government that he had been working for some distillers in Minneapolis; that while still employed there he had had a conversation with Herman Miller relative to working for the other defendants when they were ready to start operations; that he came home on a certain Sunday morning from Minneapolis; and that there was a letter for him at home in Sioux City. On direct examination, he testified, with reference to this, that he read the letter; that he went down to see Herman Miller; that he destroyed the letter around...