Piquett v. United States

• Citation: 81 F.2d 75
• Decision Date: 26 February 1936
• Docket Number: No. 5550.,5550.
• Parties: PIQUETT v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

81 F.2d 75 (1936)

PIQUETT v. UNITED STATES.

No. 5550.

Circuit Court of Appeals, Seventh Circuit.

January 2, 1936.

Rehearing Denied February 26, 1936.

John Elliott Byrne and Henry E. Pieruccini, both of Chicago, Ill. (Edwin T. Peifer, of Chicago, Ill., of counsel), for appellant.

Michael L. Igoe, of Chicago, Ill., and Brien McMahon, Richard J. O'Connor, and J. Albert Woll, Sp. Assts. to Atty. Gen., for the United States.

Before EVANS, SPARKS, and ALSCHULER, Circuit Judges.

SPARKS, Circuit Judge.

Appellant was convicted on the charge of conspiracy to violate a law of the United States, under section 37 of the Criminal Code, 18 U.S.C.A. § 88. That section provides that if two or more persons conspire to commit any offense against the United States, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall suffer the penalty therein prescribed.

The offense which appellant is alleged to have conspired to commit is defined in section 141 of the Criminal Code, 18 U.S.C.A. § 246, and so far as it is material to the questions herein presented, reads as follows:

"Whoever shall rescue * * * any person arrested upon a warrant or other process issued under the provisions of any law of the United States * * * or shall harbor or conceal any person for whose arrest a warrant or process has been so issued, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such person, shall be fined not more than $1,000, or imprisoned not more than six months, or both."

Appellant was named in the indictment as the sole defendant, and his co-conspirators were alleged to have been William Loeser, Harold B. Cassidy, Arthur O'Leary, James Probasco, deceased, and John Dillinger, deceased. The pertinent allegations of the indictment, and the overt acts are substantially set forth in the margin.¹

Appellant's demurrer to the indictment was overruled, whereupon he filed his pleas of former acquittal and res adjudicata. Both were dismissed on the Government's motions.

The first assignment of error challenges the validity of the indictment. Appellant first contends that the indictment does not charge that the warrant for Van Meter was issued under the provision of any law of the United States. His reasoning is that as the indictment in the instant case merely states that the warrant for Van Meter was issued on an indictment against him for the violation of section 37 of the Criminal Code of the United States (18 U.S.C.A. § 88), it is not tantamount to saying that Van Meter was charged with crime as a defendant in the indictment referred to, nor that a warrant was issued for his arrest as a defendant. We think this contention is supported neither by law nor by logic.

Further objection to the indictment is that its clauses "for the purpose of preventing the discovery * * *" and "for the purpose of preventing his arrest * * *" modify, and apply to the charge of conspiracy rather than to the words of the statute "harbor and conceal." Of a similar character is appellant's contention that the phrase of the indictment, "having notice and with knowledge * * *" applies to the charge of conspiracy as distinguished from the words of the statute "harbor and conceal," and that the words "after notice" are not synonymous with the words "having notice."

A recognition of the difference between the crime of conspiracy and the substantive offense therein referred to is sufficient to meet all of these objections. They are highly technical at best and under this court's ruling in Jelke v. United States, 255 F. 264, constitute no sufficient basis for striking down the indictment. Further objections to the indictment are urged, but as they are of a similar technical character, and were in no way prejudicial to appellant's rights, we think they do not merit discussion.

It is next contended by appellant that the court erred in dismissing his pleas of former acquittal and res adjudicata.

Prior to appellant's conviction he had been indicted, tried and acquitted in the District Court on a charge of conspiracy with O'Leary, Loeser, Cassidy, Dillinger and Probasco to harbor and conceal John Dillinger while the latter was a fugitive from justice in the Probasco house. That indictment was returned by a Federal Grand Jury in the Eastern Division of the Northern District of Illinois. The conspiracies charged in the two indictments will for convenience be referred to as the Dillinger conspiracy and the Van Meter conspiracy.

The pleas of former acquittal and res adjudicata alleged in substance that the offense charged in the Van Meter conspiracy indictment was the same as the one charged in the Dillinger conspiracy indictment, of which Piquett had been acquitted, and also that the overt acts alleged in the Van Meter conspiracy indictment had been issues in the first trial; that the Government and the defense had introduced evidence of the affirmative and negative of said issues, and that the issue of guilt or innocence of the conspiracy and of each overt act charged in the present indictment had been decided in favor of Piquett and against the Government by the verdict of acquittal in the first case.

The record discloses that the conspiracies were similar in that (1) they were between the same persons, (2) they were to be carried on in the same house, (3) by means of similar surgical operations, to be performed by the same doctors, (4) for similar compensations, and (5) both subjects were fugitives from federal warrants. They were dissimilar in that (1) Dillinger and Van Meter were different individuals, (2) the operation was performed on Dillinger on May 28, 1934, and upon Van Meter on June 3, 1934, (3) the period of time covered by the first indictment was from May 1, 1934, to June 4, 1934, while that of the second indictment was from May 15, 1934, to June 12, 1934 (the evidence, however, does not disclose that the operation upon Van Meter was contemplated prior to May 28, 1934), (4) the compensation for the Dillinger operation was paid in two installments, $3,000 on May 27, and $2,000 on June 3, while $5,000 for the Van Meter operation was paid on June 3, 1934, (5) the warrants of arrest which were sought to be evaded were from different courts, (6) the overt acts relied upon in the first indictment were on the respective dates of May 15, 27, 28, and June 3, and 4, 1934, while those of the indictment in this cause were June 1, 2, 3, 4, and 5, 1934.

Before a plea of former acquittal can be sustained, the offenses involved must be identical in law and fact. If the offenses are distinct in law, the plea is bad regardless of how closely they are connected in point of fact. In determining whether a conviction or acquittal on one indictment is a bar to a prosecution on another, the real inquiry is whether the first indictment was such that the accused might have been convicted under it by proof of the allegations in the other indictment. If such inquiry be answered in the affirmative, the bar is complete, but if it be answered in the negative, there can be no bar of former conviction or acquittal. Morey v. Commonwealth, 108 Mass. 433. In that case, the court said,

"The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offence. A single act may be an offence against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. * * *

"The question of the justice of punishing the offender for two distinct offences growing out of the same act was a matter for the consideration of the grand jury and the attorney for the Commonwealth in the presentment and prosecution, of the court below in imposing sentence, or of the executive in the exercise of pardoning power. It is not within the jurisdiction of this court as a court of error."

It is true that in the Morey Case the act of the defendant was in violation of two separate statutes, while in the case at bar it is claimed that there were two separate violations of the same statute. That, however, would not appear to be a sound reason for distinguishing one from the other in view of the decision in Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 711, 59 L.Ed. 1151. In that case the defendant was charged with having robbed the contents of six mail bags on the same day and in the identical transaction. The bags were separately numbered, and each bag constituted the basis of a separate count. The Supreme Court in affirming the six several convictions cited the Morey Case with approval, and said, "Although the transaction of cutting the mail bags was in a sense continuous, the complete statutory offense was committed every time a mail bag was cut in the manner described, with the intent charged." That opinion also cites Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489, which, in turn, also cites the Morey Case. See, also, Blockburger v. United States (C.C.A.) 50 F.(2d) 795, affirmed 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306.

In the following cases the Court held, as in the Morey Case, that the same transaction might constitute separate offenses under different statutes. Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057, 6 Ann.Cas. 362; Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 714, 59 L.Ed. 1153; Kelly v. United States (C.C.A.) 258 F. 392; People v. Bain, 358 Ill. 177, 193 N.E. 137. In each it was held that a conviction or acquittal of the first charge could not be pleaded as a bar to the second charge, because, owing to the difference in language of the statutes involved, the evidence necessary to convict on one charge would not be sufficient to convict on the other. In other words, ...