Rulovitch v. United States

• Decision Date: 03 January 1923
• Docket Number: 2892.
• Citation: 286 F. 315
• Parties: RULOVITCH et al. v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Third Circuit

286 F. 315

RULOVITCH et al. v. UNITED STATES. ^[1]

No. 2892.

United States Court of Appeals, Third Circuit.

January 3, 1923

Rehearing Denied February 19, 1923.

Robert H. McCarter, of Newark, N.J., Thomas Brown, of Perth Amboy N.J., and Thomas H. Hagerty, of New Brunswick, N.J., for plaintiffs in error.

Walter G. Winne, U.S. Atty., of Hackensack, N.J., and Frederic M. P Pearse, Asst. U.S. Atty., of Newark, N.J.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY Circuit Judge.

The crimes with which the nine defendants were charged under the three counts of the indictment were conspiracies, formed at specified times and places, to commit offenses against the United States (R.S. Sec. 5440, now Section 37 of the Criminal Code; Comp. St. Sec. 10,201), that is, (1) 'to unlawfully possess,' (2) 'to unlawfully transport,' and (3) 'to unlawfully sell intoxicating liquors prohibited by law, containing more than one-half of one per cent. of alcohol by volume and being fit for use for beverage purposes,' as indicated by the overt acts pleaded. All defendants were found guilty. After sentence they prosecuted this writ of error attacking here, as at the trial, the sufficiency of the indictment. The main question on review therefore is, whether the draftsman of the indictment brought the case within the law. What is the law?

First we should note the rule of criminal pleading that, under the cited conspiracy section of the Criminal Code, the averments of overt acts cannot aid any insufficiency of averments in the charging part of a count. The charging part must in itself and alone charge the offense with sufficient clearness to apprise the defendants of what they are called upon to meet and to identify the offense to commit which they are charged to have conspired. United States v. Britton, 108 U.S. 199, 2 Sup.Ct. 525, 27 L.Ed. 703; United States v. Rabinowich, 238 U.S. 78, 35 Sup.Ct. 682, 59 L.Ed. 1211. Next, we should observe that the crime charged against the defendants in each count was not a violation of the National Prohibition Act (41 Stat. 305) but was a conspiracy to violate that act. Therefore we must view the counts of the indictment as framed not under the liberal provisions of that act, and particularly not under Section 32 thereof, but under the Section of the Criminal Code prescribing the crime of conspiracy to violate generally a law of the United States.

With these much discussed aspects of the case out of the way, we come to the question of the sufficiency of the charging part of the counts. On this phase of the case the opposing parties cited a wide range of authorities, indicating quite clearly the trend of judicial decisions under changing conditions of law. This subject was discussed by Judge McPherson in Tapack v. United States, 220 F. 445, 447, 137 C.C.A. 39, 41 (C.C.A. 3d). What he said is peculiarly applicable to the question now under discussion. It is this:

'In earlier days, when excellent reasons existed for construing an indictment strictly so as to favor life and liberty, it is probable enough that such an indictment as this might have been held deficient in precise statement; and, indeed, some comparatively recent decisions still reflect something of the earlier spirit. But there can be no doubt that the prevailing tendency now, both in statute law and in decision, is to be satisfied with substance rather than to insist upon rigid adherence to form; an indictment will be held good if it substantially charge the particular offense for which the defendant is about to be, or has already been, tried. Burton v. U.S., 202 U.S. 344, 26 Sup.Ct. 688, 50 L.Ed. 1057, 6 Ann.Cas. 362; Dunbar v. U.S., 156 U.S. 195, 15 Sup.Ct. 325, 39 L.Ed. 390; McNiel v. U.S., 150 F. 82, 80 C.C.A. 36; State v. Stein, 48 Minn. 466, 51 N.W. 474; State v. Smith, 63 Vt. 201, 22 A. 604; Worsham v. Murchison, 66 Ga. 715.'

The Supreme Court very recently expressed the same view by saying:

'It is enough * * * that the offense be described with sufficient clearness to show a violation of law, and to enable the accused to know the nature and cause of the accusation and to plead the judgment, if one be rendered, in bar of further prosecution for the same offense. ' United States v. Behrman, 258 U.S. 280, 42 Sup.Ct. 303, 66 L.Ed. . . . .

Applying the same rule to the offense of conspiracy, charged under what is now Section 37 of the Criminal Code, the Supreme Court in Williamson v. United States, 207 U.S. 425, 447, 28 Sup.Ct. 163, 171 (52 L.Ed. 278) said:

'But in a charge of conspiracy the conspiracy is the gist of the crime, and certainty, to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is requisite in stating the object of the conspiracy.'

Quoting this terse statement, the Circuit Court of Appeals for the Eighth Circuit, in Anderson v. United States, 260 F. 557, 558, 171 C.C.A. 341, 342, defined the rule for charging such an offense, as follows:

'The general rule is that where conspiracy is made a statutory offense, when entered into for the purpose of committing a certain specified offense, the offense may be described in the words of the statute which creates it, if the statute sets out fully and without uncertainty or ambiguity the elements necessary to constitute the offense. If, however, the statute employs broad and comprehensive language descriptive of the general nature of the offense denounced, the use of such language is insufficient. 12 C.J. 615; Pettibone v. United States, 148 U.S. 197, 13 Sup.Ct. 542, 37 L.Ed. 419; United States v. Hess, 124 U.S. 483, 8 Sup.Ct. 571, 31 L.Ed. 516; United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; United States v. Britton, 108 U.S. 205, 2 Sup.Ct. 531, 27 L.Ed. 698. As the conspiracy is the gist of the offense, it is undoubtedly true that the offense which it is charged the defendant conspired to commit need not be stated with that particularity that would be required in an indictment charging the offense itself. Brooks v. United States, 146 F. 223, 76 C.C.A. 581; Lemon v. United States, 164 F. 953, 90 C.C.A. 617; Brown v. United States, 143 F. 60, 74 C.C.A. 214; Gould v. United States, 209 F. 730, 126 C.C.A. 454; Hyde v. United States, 198 F. 610, 119 C.C.A. 493. Still, as was said in Williamson v. United States, supra, the offense which the defendants conspired to commit must be identified.'

Dealing for the moment not with conspiracy, which is the gist of the offense charged in each count of the indictment, but with the identification of the offense to commit which it is alleged the conspiracy was formed, and remembering that under the rules of pleading the latter offense does not have to be stated with particularity beyond what is necessary to identify it, the plaintiffs in error maintain there is in each count of the indictment a complete lack of identification of the objective offense charged, because in describing it there is nothing in the count which, by process of exclusion, distinguishes the offense charged from acts which, by the terms of the National Prohibition Act, are expressly made lawful, and that, in consequence, they may have been charged with doing a perfectly lawful thing. Or, stated with particularity, the plaintiffs in error, relying upon the provision of Section 3 of the National Prohibition Act that, 'No person shall * * * sell * * * transport * * * or possess any intoxicating liquor except as authorized by this act,' and upon another paragraph of the same section which provides that, 'Liquor for non-beverage purposes and wine for sacramental purposes may be manufactured * * * sold * * * and possessed,' and also upon other provisions of the act which make the handling of intoxicating liquor with permits lawful, maintain that the counts of the indictment do not specify, or identify, the objective offenses intended by the conspiracies so that transactions admittedly lawful may be excepted or excluded, and that, in consequence, they may be charged with acts which, being permitted by the statute, are lawful.

We do not find substance in this contention, mainly because there is a rule of criminal pleading applicable in declaring on a statute containing an exception, which provides that:

'The rule applicable to such statutes is that it is enough to charge facts sufficient to show that the accused is not within the exception. ' United States v. Behrman, 258 U.S. 280, 42 Sup.Ct. 303, 66 L.Ed. . . .; and United States v. Cook, 17 Wall. 168, 173 (21 L.Ed. 538).

Certainly it is not necessary in charging conspiracy to commit the offense of unlawfully selling liquor to aver that this unlawful objective offense does not come within the exception which makes the sale of liquor lawful under certain circumstances. In charging that the object of the conspiracy in each of the three counts was, respectively, the unlawful possession, unlawful transportation and unlawful sale of liquor, the pleader has by the term 'unlawful' excepted like transactions which under different conditions are lawful. Therefore it seems to us that he has clearly identified the offense which, in each count, was the object of the conspiracy by charging it to be such possession transportation, or sale of intoxicating liquor as is prohibited by law, and therefore only such as is unlawful. The pleader was not required to plead as exceptions the lawful sale of 'liquor * * * for...