Powers v. United States

• Decision Date: 03 December 1923
• Docket Number: 4047.
• Citation: 293 F. 964
• Parties: POWERS v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

293 F. 964

POWERS v. UNITED STATES.

No. 4047.

United States Court of Appeals, Ninth Circuit.

December 3, 1923

Munter & Munter and Powell & Herman, all of Spokane, Wash., for plaintiff in error.

Frank R. Jeffrey, U.S. Atty., of Spokane, Wash.

Before ROSS, HUNT, and MORROW, Circuit Judges.

MORROW Circuit Judge.

Plaintiff in error was convicted, with others, on the second count of an indictment charging conspiracy with other defendants named therein for violation of section 37 of the Penal Code (Comp St. 10201). The indictment, the sufficiency of which is not questioned, contained four counts. Defendant was found not guilty on counts I, III, and IV. Omitting parts not material here, the second count, upon which plaintiff in error was convicted, with others, charges as follows:

Count II. That on or about the 1st day of May, 1921, in Ferry county, in the state and Eastern district of Washington Cline Ledgerwood, Thomas Parker, J. Guy Dungan, Jesse B Cooke, alias Dick Cook, R. F. Carpenter, Le Roy Powers, and John Woods conspired together to commit acts made offenses by the Act of October 28, 1919 (41 Stat. 305), known as the National Prohibition Act, by aiding, abetting, and counseling certain persons engaged in the unlawful transportation of liquor, to transport intoxicating liquor from the Dominion of Canada into the United States, particularly into Ferry county, Wash.

After charging certain details of the conspiracy, the indictment alleges: That the said willful, unlawful, and felonious conspiracy, combination, and agreement was formed on or about the 1st day of May, 1921, in Ferry county, within the state and Eastern district of Washington and that it was a part of the said scheme that the conspiracy was to be a continuing one, and it was continued in existence, operation, and execution from about the 1st day of May, 1921, until the 7th day of August, 1922; that in pursuance of the said unlawful and felonious conspiracy, combination, and agreement, and to effect the object of the same, the said conspirators did willfully and unlawfully perform and do the following overt acts: (1) That on or about May 24, 1922, the said conspirators assisted, aided, and abetted in the transportation of 10 cases of intoxicating liquor from the Canadian boundary line to Republic, in Ferry county, Wash.; (2) that on or about July 10 1922, the said conspirators assisted, aided, and abetted in the transportation of 15 cases of intoxicating liquor from the Canadian boundary line to Republic, Ferry county, Wash.; (3) that on or about July 28, 1922, the said conspirators assisted, aided, and abetted in the transportation of 20 cases of intoxicating liquor from the Canadian boundary line to Republic, Ferry county, Wash.

The charge of a continuing conspiracy is for the same period of time and in all other particulars in almost identical language in all four counts. The errors assigned may be reduced to the single question, whether the indictment charges separate and distinct crimes, which cannot be joined in one indictment.

Plaintiff in error contends that, notwithstanding he was convicted only on one count of the indictment, and found not guilty upon the other three counts, this alleged error is available to him, for the reason that prior to going to trial he moved the court for an order setting aside and quashing the indictment on the ground that it alleged separate and distinct and specific offenses, alleged numerous and disconnected separate and distinct offenses and transactions specifically in counts III and IV of the indictment, and in the alternative, in the event the court should deny this motion, then the court should enter an order requiring the United States to elect whether it would proceed to trial upon counts I and II, or upon counts III and IV, of the indictment. The motion in its original form and in the alternative was denied. The objection was renewed upon motion for judgment of acquittal notwithstanding the verdict of the jury, and in arrest of judgment and upon motion for a new trial.

Counts I and II each charge, as an element of detail, a conspiracy to commit acts made crimes by the Act of October 28, 1919 (41 Stat. 305), known as the National Prohibition Act. Counts III and IV each charge, as an element of detail, a conspiracy to commit acts made crimes by the Act of March 3, 1917 (39 Stat. 1069) known as the Reed 'Bone Dry' Amendment (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 8739a, 10387a-10387c).

The plaintiff in error contends that these four counts, charging a conspiracy to commit the crimes defined in these two acts of Congress, cannot be joined together in one indictment....