Miller v. United States

• Decision Date: 02 July 1924
• Docket Number: 4017,4053.
• Citation: 300 F. 529
• Parties: MILLER v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

300 F. 529

MILLER v. UNITED STATES.

Nos. 4017, 4053.

United States Court of Appeals, Sixth Circuit.

July 2, 1924

[Copyrighted Material Omitted]

H. A Behrendt, of Detroit, Mich., for plaintiff in error.

Geo. E Reed, Asst. U.S. Atty., of Toledo, Ohio (A. E. Bernsteen, U.S. Atty., of Cleveland, Ohio, on the brief), for the United States.

Before DENISON, MACK, and DONAHUE, Circuit Judges.

DENISON Circuit Judge.

Philip Miller, with others, was indicted on four counts, the first for conspiracy to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, Sec. 10138 1/4 et seq.), the second for unlawful possession of intoxicating liquor, the third for unlawful sale of whisky, and the fourth for maintaining a nuisance, viz. a place where liquor was unlawfully kept and sold. He was convicted on all four counts, upon evidence tending to show that he was dealing on a large scale in 'moonshine' whisky. He was sentenced June 19, 1923, upon the nuisance count to imprisonment for one year in the Dayton workhouse and to pay a fine of $900, upon the sale count ^[1]to imprisonment in the Canton workhouse for six months, upon the possession count to pay a fine of $400, and upon the conspiracy count to imprisonment in Atlanta for two years and to pay a fine of $9,500-- the imprisonment sentences to be consecutive and not concurrent. There having been some discussion of a plan by which the sentences would be lessened and Miller would pay the reduced fines, an order was entered on June 25th on the journal of the court, vacating the former sentence and imposing a new one for fines of about half the former amounts and for somewhat less imprisonment. On July 6th an order was entered vacating the sentence of June 25th, and reimposing a sentence the same in all respects as that of June 19th, excepting that the imprisonment upon the sale count was to be in the Dayton workhouse. On the same day, it having been made to appear to the court, upon a summary and informal inquiry, that Miller had about $6,000 in a bank deposit in the name of his sister, and his sister being present in court and admitting that the money belonged to Miller, and neither she nor Miller making any objection, the court ordered that this money be paid by the bank to the clerk of the court, and by the clerk applied to the payment of the fines adjudged against Miller. No proceeding for review being initiated, commitment issued, shortly after July 6th, and Miller began his sentence in the Dayton workhouse. New counsel having been employed by Miller, a writ of error was allowed on July 17th, and Miller was admitted to bail and released from the workhouse.

While so on bail and awaiting a hearing in this court, Miller was again indicted (with others), in count 1 for a conspiracy, formed in September, 1923, to violate the National Prohibition Act, in count 2 of the same indictment for possession of intoxicating liquor, and in count 3 for maintaining a nuisance place where liquor was kept and sold. Upon this second indictment he was found guilty on all three counts. He was thereupon sentenced to pay a fine of $1,000 and to imprisonment in Atlanta for two years, the term to commence at the conclusion of the imprisonment imposed in the former case. In the second case a writ of error was allowed in October, 1923.

In each case the assignment of errors, filed with the petition for a writ of error, omitted some claims of error which were afterwards supplied by a so-called supplementary assignment. Although there is in the rules no express provision for such supplementary assignments, we think they were permissible under the circumstances of this case. Without fault on the part of counsel who prosecuted the review, he was unable to get a copy of the trial record within the time within which he must obtain a writ of error in order to get an effective supersedeas. As soon as a copy of the record could be had, and in connection with settling the bill of exceptions, the supplemental assignments were filed. We think they should be treated as in substantial conformity to the rules.

The indictment is attacked as insufficient, because it states conclusions, does not state all the necessary elements of the crime, relies upon the overt acts to make it complete, does not negative facts which might make the possession legally permissible, is in too general terms, would not prevent a subsequent conviction, and does not enable the defendant to prepare for trial. Omitting unnecessary verbiage, the indictment, filed June 7, 1923, is as follows:

'That Philip Miller, Jake Greenberg, and W. Josak * * * heretofore, on or about June 5, 1923, at Toledo, Ohio, * * * in the division and district aforesaid, * * * did unlawfully, willfully, knowingly, and feloniously conspire, combine, confederate, and agree together with one another and each with the other, to commit an offense against the United States, to wit, to violate the * * * National Prohibition Act, particularly title 2 thereof, in that they would unlawfully, willfully, and knowingly * * * manufacture, possess, transport, barter, and sell intoxicating liquors and distilled spirits, the same then and there containing one-half of 1 per cent. of alcohol by volume and then and there being fit for beverage purposes, in violation and contrary to the provisions of the National Prohibition Act.'

This indictment closely fixes date and place and is sufficient against all the objections urged, which are all covered by our recent decisions. Dierkes v. U.S. (C.C.A.) 274 F. 78, 79; Rudner v. U.S. (C.C.A.) 281 F. 516; Robilio v. U.S. (C.C.A.) 291 F. 975; Remus v. U.S. (C.C.A.) 291 F. 501; De Witt v. U.S., 291 F. 995, 998; Hindman v. U.S., 292 F. 679; Huth v. U.S., 295 F. 35. Without any help from the overt acts, there is an allegation of every fact necessary to make the offense. As pointed out in the Huth Case, supra, a judgment on such an indictment is a bar to subsequent prosecution for any offense which could have been proved under the indictment, and the very generality of its terms, therefore, makes it the more ample protection. The objection that such general statements do not give defendant sufficient knowledge to enable him to prepare for trial is no longer of its former importance, since most defects of this character-- certainly any appearing in this indictment-- can now be cured by obtaining a bill of particulars.

Cases of which Keck v. U.S., 172 U.S. 434, 19 Sup.Ct. 254, 43 L.Ed. 505, is typical, and which hold an indictment insufficient because it merely states a general fact in the words of the statute, do not apply to the situation existing under the National Prohibition Act. They refer to some act like importation of merchandise, which is presumptively lawful, and therefore the indictment must show the details which make the act unlawful. Not so with the sale of intoxicating liquor. It is lawful only if exceptional circumstances exist, and, by the general policy of the law, the burden of justifying is put upon the seller.

Complaint is further made as to the second and third imposition of varying sentences, based upon the same conviction. It should be said that the district judge certifies in the bill of exceptions that the June 25th order of vacation and of resentence was inadvertently entered by the clerk, without intentional sanction by the judge, and that the order of July 6th was intended to be merely a correction of this error and a reimposition of the original sentence. Even without the aid of this explanation, we do not see where there is room to complain. After the sentence of June 19th, and during the term and before the commitment issued, the court either had or had not power to change its terms. If there was power to do so, the same power would permit another change, such as was made on July 6th; if there was no power, the order of June 25th was void, and that of June 19th stood unimpaired, and that of July 6th was a substantial reannouncement of the same result. We do not overlook that as between the orders of June 19th and July 6th, there was a change in the place of imprisonment upon the sale count from one workhouse to another; but, if this was more than a mere inadvertence in one order or the other, no reason is suggested why there could be any substantial prejudice from the change.

Complaint is made of the order appropriating money in the bank to apply upon the fines. The practice pursued was summary; we could not approve it under ordinary circumstances as against objection duly made; but in view of the circumstances, and the result which we reach upon this review, we find no prejudice to Miller justifying reversal of this order. There were judgments in favor of the United States for about $11,000; there was no stay, and execution could have issued; apparently the fund in the bank could have been reached by attachment or by garnishment; Miller and his sister and the bank were the only persons interested, and all were present in court and made no objection. It does not appear that the court has parted with control of the money paid into court, so that it could not be refunded if occasion should arise. The fact that Miller was not represented by counsel at this time induces some hesitation in affirming, but the plain lack of any actual injury to Miller's rights removes that hesitation.

Complaint is made because the trial judge refused to permit the writ of error to operate as a supersedeas, unless Miller would give a bond sufficient in amount to secure the payment of the fines and upon the theory that the statutory 'damages and costs,' which are to be the condition of a supersedeas bond, refer to fines in a criminal case. It is said that in any criminal case the right of supersedeas upon giving a cost bond is...