Rudner v. United States

Decision Date09 June 1922
Docket Number3635.
Citation281 F. 516
PartiesRUDNER et al. v. UNITED STATES.
CourtU.S. Court of Appeals — Sixth Circuit

E. H Moore, of Youngstown, Ohio (Moore, Barnum & Hammond, of Youngstown, Ohio, and George H. Clark, of Canton, Ohio, on the brief), for plaintiffs in error.

Joseph C. Breitenstein, Asst. U.S. Atty., of Cleveland, Ohio.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

KNAPPEN Circuit Judge.

The plaintiffs in error (8 in number), together with 12 other persons, were jointly indicted in the District Court below upon a charge of conspiring, at Pittsburgh, Pa., Canton Ohio, and elsewhere in the Northern district of Ohio, under section 37 of the Criminal Code (Comp. St. Sec. 10201), to violate the National Prohibition Act (41 Stat. 305) particularly title 2, by unlawfully, willfully, and knowingly selling, bartering, transporting, delivering furnishing, and possessing distilled spirits and intoxicating liquor otherwise than as authorized by the National Prohibition Act, and in violation of the provisions of that act. Plaintiffs in error Ben Rudner, Morris Rudner, Windolf, Jacobs, and Lundgren all resided at Canton, Ohio. Plaintiffs in error Darling, Charles Nauman, and George Nauman resided at Pittsburgh, Pa. Twenty-nine overt acts were charged, a large number relating to transportation by Ben Rudner, either alone or with others, including in two or more instances plaintiff in error Morris Rudner, of whisky from Pittsburgh to Canton, one relating to the sale of whisky by plaintiff in error Darling and another, at Pittsburgh, to Ben Rudner and another; another overt act charged relating to sale by both Charles and George Nauman to Ben Rudner, also at Pittsburgh; another relating to sales by one or more of plaintiffs in error or others at Canton; still others of the overt acts charged relating to other transportations, either by one or more of plaintiffs in error; others alleging the having of whisky in possession either by one or more of plaintiffs in error or by others charged in the indictment; still others relating to transporting, selling, and delivering whisky at different places in the Northern district of Ohio. Each of the plaintiffs in error was charged to have been connected with the commission of one or the other of the overt acts. In each case the overt acts stated were charged to have been committed in violation of the National Prohibition Act, and the whisky alleged to be of the character and sold for the purposes prohibited by the act.

Each plaintiff in error demurred to the indictment, as not stating facts sufficient to show the commission by the defendant of an offense against the United States, and as not stating facts charging such defendant with the commission of an offense within the Northern district of Ohio. These demurrers were overruled. Motions to quash the indictment, presented by each of the plaintiffs in error, for reasons set forth in the margin of this opinion, [1] were likewise overruled, and trial had, resulting in the conviction of plaintiffs in error. Numerous criticisms are made upon the proceedings below, the more important of which will appear in the course of this opinion.

1. We think the indictment sufficiently describes the offense charged. It in terms charges a conspiracy to commit a crime, or a series of crimes. The conspiracy is alleged to have been formed subsequent to January 16, 1920, on which date the Volstead Act took effect. Dillon v. Gloss, 256 U.S. 368, 41 Sup.Ct. 510, 65 L.Ed. 994. It was clearly criminal unlawfully to sell, barter, transport, deliver, furnish, or possess distilled and intoxicating liquors otherwise than as authorized under the Volstead Act, and in violation of its provisions. It is the general rule that, where the ultimate object of the conspiracy is not unlawful, but is to be accomplished by unlawful means, such means must be set out; but where the conspiracy is to commit a crime by means not necessarily unlawful such means need not be set out. Jelke v. United States (C.C.A. 7) 255 F. 264, 275, et seq., 166 C.C.A. 434. That the overt acts need not be criminal is well settled. United States v. Rabinowich, 238 page 86, 35 Sup.Ct. 682, 59 L.Ed. 1211.

Nor was it necessary to the validity of the indictment, as protecting defendants against future prosecutions or to enable them to prepare their defense, to set out the manner in which the defendants came into the alleged conspiracy, and from the language of the indictment the trial court was readily able to determine whether the facts charged therein were sufficient to support a conviction. It is true that it is not per se unlawful in any and every case to sell, barter, transport, deliver, furnish, or possess distilled spirits and intoxicating liquors; but it is unlawful per se to sell, transport, etc., distilled spirits and intoxicating liquors otherwise than as authorized by the National Prohibition Act. Whisky is both a distilled and intoxicating liquor, as the court will take judicial cognizance. Albert v. United States, 281 F. 511, decided by this court June 6, 1922.

It is the general rule that an indictment attempting to charge conspiracy to commit a crime is sufficient if it follows the language of the statute and contains a sufficient statement of an overt act to effect the object of the conspiracy, unless the conspiracy involves its carrying out in such a manner that the defendants would not be fairly and reasonably informed of the character of the offense without detailed statement of the means, the time and the place, which we think is not the case here. Jelke v. United States, supra, 255 page 275, 166 C.C.A. 434. If, as might be the case, defendants had desired further detailed information to prepare for the trial, the well-established federal practice enabled them to obtain the same by calling for a bill of particulars. Rosen v. United States, 161 U.S. 29, 34, 16 Sup.Ct. 434, 40 L.Ed. 606; Dierkes v. United States (C.C.A. 6) 274 F. 75, 76, and cases there cited. No bill of particulars was asked for. Possibly it was deemed unnecessary by reason of the elaborate statement of overt acts contained in the indictment.

The indictment stated the commission of an offense within the Northern district of Ohio, not only in the inclusion of that district as one of the places in which the conspiracy was formed, but especially in the fact that overt acts were alleged to have been committed in that district by some of the conspirators. It was unnecessary to jurisdiction that all the defendants should have committed an overt act therein. It is enough that any one of them did so. Bannon v. United States, 156 U.S. 464, 468, 15 Sup.Ct. 467, 39 L.Ed. 494; United States v. Rabinowich, 238 page 86, 35 Sup.Ct. 682, 59 L.Ed. 1211. We see no merit in the suggestion that the indictment charges various separate and distinct offenses under a single count of the indictment. The single offense charged in the indictment is a conspiracy to violate the National Prohibition Act in the manner stated. The remaining objections contained in the motion to quash are so plainly without merit as to require no further specific comment. The sufficiency of the indictment is sustained by authorities, among which are Joplin Merc. Co. v. United States (C.C.A. 8) 213 F. 926, 929, et seq., 131 C.C.A. 160, Ann. Cas. 1916C, 470; Jelke v. United States (C.C.A. 7) 255 F. 264, 166 C.C.A. 434; Shepard v. United States (C.C.A. 9) 236 F. 73, 149 C.C.A. 283; Hockett v. United States (C.C.A. 9) 265 F. 588.

2. Defendants contend that the evidence, if it shows any conspiracy, shows a series of conspiracies between nonconfederate groups of defendants. This contention grows out of this situation: The evidence shows without dispute (neither plaintiff in error testified) that the conspiracy was formed among the Canton defendants (some or all of them) of which conspiracy Ben Rudner was the head and front, embracing for its objects the various classes of acts charged in the indictment, and before any of the purchases of whisky involved in this case were made at Pittsburgh. The evidence is sufficient to sustain a conclusion that the conspiracy embraced broadly the purchase by Ben Rudner of whisky in Pittsburgh (or elsewhere, if more convenient), the illegal transporting of such whisky to Canton, and its unlawful possession and sale there and in that vicinity. The testimony is to the effect that from the early part of the year 1920, until at least the month of October, Ben Rudner and his associates made a considerable number of wholesale purchases of whisky from Darling & Biener, at Pittsburgh, and that beginning about perhaps the middle of December, and for some months after that,...

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