Rubio v. United States

• Decision Date: 28 November 1927
• Docket Number: No. 5132.,5132.
• Parties: RUBIO et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

22 F.2d 766 (1927)

RUBIO et al. v. UNITED STATES.

No. 5132.

Circuit Court of Appeals, Ninth Circuit.

November 28, 1927.

Kenneth C. Gillis, of Oakland, Cal., for plaintiffs in error Rubio and Allender.

Edwin V. McKenzie, of San Francisco, Cal., for plaintiff in error Murphy.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before HUNT, RUDKIN, and DIETRICH, Circuit Judges.

RUDKIN, Circuit Judge.

This is a writ of error to review a judgment of conviction under section 37 of the Criminal Code (18 USCA § 88). Error is assigned in the overruling of demurrers to the indictment, in the denial of the motion to quash the indictment, in the denial of motions or demands for bills of particulars on behalf of two of the plaintiffs in error, and in the overruling of motions in arrest of judgment. These four assignments may well be considered together.

The indictment is prolix, and many of its recitals of laws and regulations might well have been omitted; but, rejecting these as surplusage, we find that the indictment charges in plain and concise language that the defendants did, within the jurisdiction of the court below, on or about January 1, 1924, the exact time and place being to the grand jurors unknown, and at all times thereafter up to and including the date of the filing of the indictment, combine, confederate, and agree together and with divers other persons, whose names are to the grand jurors unknown, to possess and transport intoxicating liquor in violation of the National Prohibition Act (27 USCA), and that certain overt acts were committed to effect the object of the conspiracy. This form of indictment has been so often approved by this court that its sufficiency is no longer open to question. Terry v. United States (C. C. A.) 7 F.(2d) 28; Ford v. United States (C. C. A.) 10 F. (2d) 339; Id., 273 U. S. 593, 47 S. Ct. 531, 71 L. Ed. 793.

The plaintiffs in error, Rubio and Murphy, demanded bills of particulars setting forth, first, the names of any of the unknown conspirators whose names had become known to the government since the return of the indictment; second, the particular time and place of the formation of the conspiracy; and, third, the particular acts committed by each of the demanding parties, connecting him with the conspiracy charged, together with the times and places when and where such acts were committed, and the particular acts committed by each of the demanding parties in furtherance of the object of the conspiracy, together with the dates and places when and where such acts were committed, otherwise than as set forth in the indictment.

1. We think the parties to the conspiracy and the conspiracy itself were sufficiently described in the indictment, without requiring the government to set forth the names of the unknown conspirators whose names had been ascertained since the return of the indictment. Indeed, there was nothing in the demand or in the record itself to indicate that the names of any of the conspirators had been ascertained by the government since the return of the indictment.

2. Speaking generally, the government has no knowledge of the exact time or place of the formation of the conspiracy, and to require it to specify the particular time and place, and limit the proof to that time and place, would defeat almost every prosecution under this act. For these reasons, we are satisfied that the time and place of the formation of the conspiracy are sufficiently fixed by the overt acts set forth in the indictment. Fisher v. United States (C. C. A.) 2 F.(2d) 843; Woitte v. United States (C. C. A.) 19 F.(2d) 506.

3. To require the government to set forth every act tending to connect each of the parties charged with the conspiracy, and every act committed by each of the parties in furtherance of the object of the conspiracy, would be to require it to make a complete discovery of its entire case. Such is not the office or function of a bill of particulars. In almost every prosecution facts and circumstances are given in evidence of which the charge in the indictment gives no notice. If the defendant is taken by surprise, the court has ample power to protect him by granting a continuance upon a proper showing, or by granting a new trial if his rights cannot otherwise be safeguarded; but, if not taken by surprise, he has no just ground for complaint.

"The application for the bill of particulars was one addressed to the sound discretion of the court, and, there being no abuse of this discretion, its action thereon should not be disturbed. * * * And there is nothing in the record indicating that the defendant was taken by surprise in the progress of the trial, or that his substantial rights were prejudiced in any way by...