Robilio v. United States

• Decision Date: 29 June 1923
• Docket Number: 3792.
• Citation: 291 F. 975
• Parties: ROBILIO et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

291 F. 975

ROBILIO et al. v. UNITED STATES.

No. 3792.

United States Court of Appeals, Sixth Circuit.

June 29, 1923

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Charles M. Bryan, of Memphis, Tenn. (A. G. Brode and Prewitt Semmes both of Memphis, Tenn., on the brief), for plaintiffs in error.

W. H. Fisher, Asst. U.S. Atty., of Memphis, Tenn. (S. E. Murray and A. A. Hornsby, both of Memphis, Tenn., on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

KNAPPEN Circuit Judge.

This writ is brought to review judgments on conviction of the several plaintiffs in error upon an indictment under section 37 of the Penal Code (Comp. St. Sec. 10201), charging conspiracy to violate the Reed Amendment (Act March 3, 1917, c. 162, 39 Stat. 1058, 1069 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 8739a)).

Criticism is made of the denial of motion to quash the indictment upon each of four grounds, none of which we think meritorious. The proposition that the Reed Amendment was repealed by the Volstead Act is without force as applied to the instant case (41 Stat. 305). The indictment charges that the offense here in question was committed 'on or about the . . . day of April, A.D. 1919. ' The Volstead Act did not take effect until January 16, 1920 (Dillon v. Gloss, 256 U.S. 368, 41 Sup.Ct. 510, 65 L.Ed. 994), and expressly provided (section 35 of title 2) that it should not 'relieve any person from any liability, civil or criminal, heretofore or hereafter incurred under existing laws. ' Under this clause we have more than once held that prosecutions under the revenue sections committed before January, 1920, were saved. Howard v. United States, 271 F. 301, 302; Tisch v. United States, 274 F. 208; Baird v. United States, 279 F. 509, 511. No reason is apparent why the same rule should not apply to prosecutions under the Reed Amendment.

The contention that an attempt to violate the Reed Amendment cannot be charged as a conspiracy, for the reasons that the indictment charges no other acts than such as are embraced in an attempt to violate that amendment, and that the latter by its terms creates an offense in which the co-operation of various parties is necessary, such necessary co-operation effecting only a violation of the act-- which is made a specific offense and is punishable by a specific penalty-- is sufficiently answered by the decision of this court in Laughter v. United States, 259 F. 94, 97, 170 C.C.A. 162.

Equally without merit, in our opinion, is the criticism of the indictment as indefinite and uncertain. It charges a conspiracy 'to commit the acts made offenses and crimes against the United States of America by the act of Congress approved March 3, 1917, known as the 'Reed Amendment.' That is to say, the said defendants, conspired, combined, confederated and agreed that they would unlawfully, willfully and knowingly order, purchase and cause intoxicating liquors to be transported in interstate commerce, from Caruthersville, in the state of Missouri, to Memphis, in the state of Tennessee, in a water conveyance upon the Mississippi river; said intoxicating liquors being ordered, purchased and transported for other than scientific, sacramental, medicinal or mechanical purposes; it being then and there in violation of the laws of the state of Tennessee to manufacture or sell therein intoxicating liquors.'

In our opinion this indictment informed defendants of the charge made against them sufficiently to enable them to prepare for trial and to insure protection against double jeopardy. Rudner v. United States (C.C.A. 6) 281 F. 516, 518.

The suggestion that on account of the indefiniteness of the charges in the instant indictment Berryman was not sufficiently informed of the nature of the accusation to enable him to plead (perhaps to know whether he could plead) a former conviction for a substantive offense under the Reed Amendment we think not well taken. Had a more definite statement of the date of the offense been thought necessary, a bill of particulars should have furnished the desired information. Dierkes v. United States (C.C.A. 6) 274 F. 75, 76; Rudner v. United States, supra, at page 518. In fact, Berryman's testimony suggests lack of ground for apprehension of double jeopardy. He says he was convicted of violating the Reed Amendment 'in January, 1919;' the indictment before us (as already stated) lays the offense 'on or about the . . . day of April, 1919;' and the time given in the government's testimony is 'along about the first week in April, 1919. ' Moreover, it is the natural inference from Berryman's testimony that his former conviction was for an offense in no way connected with the conspiracy here in question. He says he never brought in whisky by boat from Caruthersville to Memphis (which is the subject of the conspiracy here charged), but that he was 'caught with a load of whisky around Somerville, bringing it into the state of Tennessee. ' No contention is made that liquor brought in by water from Caruthersville to Memphis would naturally find its way to or through Somerville. The overt act charged in the indictment here is the landing, keeping, and making repairs upon two specified boats at a certain place in Memphis 'during the month of April, A.D. 1919,' 'for the purpose and to aid the said defendants in transporting intoxicating liquors from Caruthersville, in the state of Missouri, to Memphis, in the state of Tennessee. ' The Laughter Case, supra, lends no support to a view that Berryman's conviction in question would bar prosecution for the conspiracy here involved. The motion to quash the indictment was properly overruled.

This case belongs to the general group which includes the Tuckerman (No. 3791), Wilkes (No. 3810), Berryman (No. 3826, C.C.A.) 291 F. 958, Wallace (No. 3800, C.C.A. 291 F. 972, and other cases of alleged bribery of Tyree Taylor, this day decided by this court. In the instant case also Tyree Taylor and his wife testified for the government. Some of the questions raised here are discussed in one or more of the other cases referred to. We shall limit our discussion to propositions not there fully treated.

After each defendant but Wallace had testified in his own behalf the government introduced testimony of Taylor's reputation for truth and veracity. Defendants contend that such reputation had not been directly attacked, and that testimony in its support was thus inadmissible. We find it unnecessary to consider this proposition as applied to the instant case, for the reason that the record does not show that it was presented to the trial court. To the question whether the witness knew Taylor's general reputation for truth and veracity objection was made without stating the ground thereof, and at the close of the direct examination of the witness counsel objected 'to the entire testimony, and ask that it be stricken out. ' It is a commonplace that the overruling of an objection whose ground is not stated is not reviewable as of right. Robinson v. Van Hooser (C.C.A. 6) 196 F. at page 624, 116 C.C.A. 294. This rule is not changed by section 269 of the Judicial Code, as amended in 1919 (Comp. St. Ann. Supp. 1919, Sec. 1246), which declares that on the hearing 'of any * * * writ of error, * * * in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties. ' Previous to this amendment, federal courts of review, in the exercise of a sound judicial discretion and to prevent miscarriage of justice, sometimes noticed error in the trial of a criminal case although the question was not properly raised at the trial, by objection and exception. Wiborg v. United States, 163 U.S. 632, 659, 16 Sup.Ct. 1127, 41 L.Ed. 289; Crawford v. United States, 212 U.S. 183, 194, 29 Sup.Ct. 260, 53 L.Ed. 465, 15 Ann.Cas. 392; Tucker v. United States (C.C.A. 6) 224 F. 833, 841, 140 C.C.A. 279. In our opinion, while amended section 269 does not attempt to sanction a violation of substantial rights, or to disregard prejudice (West v. United States (C.C.A. 6) 258 F. 413, 415, 169 C.C.A. 429; Consolidation Co. v. Peninsular Co. (C.C.A. 6) 272 F. 625, 633), it does not extend the authority of the reviewing court, in the interest of a plaintiff in error, beyond that permissible under the previously existing rule for preventing miscarriage of justice (Katz v. United States (C.C.A. 1) 273 F. 157, 158, 159). A prominent object seems to have been to prevent reversal of judgments for mere technical errors which did not prejudice. Kirk v. United States (C.C.A. 8) 280 F. 506, 507; Lucadamo v. United States (C.C.A. 2) 280 F. 653, 658; Honeycutt v. United States (C.C.A. 4) 277 F. 941, 944; Southern Oil Corp. v. Waggoner (C.C.A. 5) 276 F. 487, 490. The statute has been so treated by us. It is the generally accepted rule that the section does not dispense with the necessity of objection or exception, both as respects the admission and rejection of testimony and the charge to the jury. Carson v. Jackson, 281 F. 411, 416, 417, 52 App.D.C. 51; Thompson v. United States (C.C.A. 3) 283 F. 895, 896, 897; Roberts v. United States (C.C.A. 8) 283 F. 960, 967; Rosen v. United States (C.C.A. 2) 271 F. 651, 653; De Jianne v. United States (C.C.A. 3) 282 F. 737, 739; Standard v. Allen, 267 F. 645, 647, 50 App.D.C. 87. And such has been the practice of this court. Loewenthal v. United States (C.C.A. 6) 274 Fed.at page 568; Morenkow v. United States (C.C.A. 6) 276 F. at page 294. It has also been held that the effect of the amended section is to put upon plaintiff in error the burden of showing that the alleged...