Reynolds v. United States

• Decision Date: 04 April 1922
• Docket Number: 3639.
• Parties: REYNOLDS v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Sixth Circuit

280 F. 1

REYNOLDS v. UNITED STATES. ^[1]

No. 3639.

United States Court of Appeals, Sixth Circuit.

April 4, 1922

John E Bell, of Memphis, Tenn. (Bell, Phillips & Lyons, of Memphis Tenn., on the brief), for plaintiff in error.

Geo. C Taylor, U.S. Atty., of Greeneville, Tenn. (Thos. J. Walsh Asst. U.S. Atty., of Humboldt, Tenn., and W. H. Fisher, Asst. U.S. Atty., of Jackson, Tenn., on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

PER CURIAM.

Plaintiff in error was convicted upon each of two counts of an indictment under the National Prohibition Act (41 Stat. 305) the first count charging the unlawful manufacture and possession of intoxicating liquors, and the second charging the possession of certain implements and materials designed for the manufacture of intoxicating liquors for unlawful use. The judgment covered conviction under both counts. The charges contained in the respective counts grow out of substantially the same transaction. In each the charge is laid as on or about May 25th.

The testimony principally relied upon for conviction as to each count related to the finding in the basement of the residence of plaintiff in error, on May 25th, of certain manufactured liquors and certain utensils and materials for such manufacture. The sole contention of plaintiff in error made here (although stated in two forms) is that she has been twice punished for a single offense, invoking in support of that contention divers holdings of state courts under what is called the 'same transaction' rule. This broad rule, however, does not prevail in the courts of the United States, wherein it is well settled that it is competent for Congress to create separate and distinct offenses growing out of the same transaction; the test of identity of offense being whether the same evidence is required to sustain each.

In Carter v. McClaughry, 183 U.S. 365, 22 Sup.Ct. 181, 46 L.Ed. 236 (habeas corpus to review conviction by court-martial), it was held that a charge of conspiracy to defraud and a charge of causing false and fraudulent claims to be made were separate and distinct offenses, and separately punishable; 'one requiring certain evidence, which the other did not. ' The court said:

'The fact that both charges related to and grew out of one transaction made no difference.' 183 U.S. 394, 395, 22 Sup.Ct. 193, 46 L.Ed. 236.

In Burton v. United States, 202 U.S. 344, 380, 381, 26 Sup.Ct. 688, 698 (50 L.Ed. 1057, 6 Ann.Cas. 392), it was held that a plea of former jeopardy is bad 'if the offenses charged in the two indictments be perfectly distinct in point of law, however nearly they may be connected in fact,' quoting with approval the statement in Bishop's Criminal Law that 'the jeopardy is not the same when the two indictments are so diverse as to preclude the same evidence from sustaining both. ' It was held that an agreement to receive compensation, whether received or not, for prohibited services, and the receiving of such compensation whether in pursuance of a previous agreement or not, are separate and distinct offenses, and punishable accordingly.

In Gavieres v. United States, 220 U.S. 338, 342, 31 Sup.Ct. 421, 55 L.Ed. 489, it was again held that a single act may be an offense against two statutes, and that, if each 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 under the other. It was accordingly held that one convicted and punished under an ordinance prohibiting drunkenness and rude and boisterous language was not put in second jeopardy by being subsequently tried under another ordinance for insulting a public officer, although the latter charge was based on the same conduct and language as the former, and for the reason that the two offenses were separate and required separate proof to convict.

In Ebeling v. Morgan, 237 U.S. 625, 35 Sup.Ct. 710, 59 L.Ed. 1151, the rule that the same course of conduct and upon the same occasion may amount to separate offenses and be separately punished was applied in holding that successive cuttings of different mail bags with criminal intent, although parts of one continuous transaction, constituted separate offenses, and for the reason that it was the intention of Congress to protect each mail bag from felonious injury and mutilation, and that the offense is complete when one mail bag is so cut or injured, and that, notwithstanding 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, and with the intent charged.'

On the other hand, in the case of Nielsen, Petitioner, 131 U.S. 176 9 Sup.Ct. 672, 33 L.Ed. 118, it...