Scaffidi v. United States, 2336.

• Decision Date: 21 January 1930
• Docket Number: No. 2336.,2336.
• Citation: 37 F.2d 203
• Parties: SCAFFIDI et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

37 F.2d 203 (1930)

SCAFFIDI et al. v. UNITED STATES.

No. 2336.

Circuit Court of Appeals, First Circuit.

January 21, 1930.

William H. Lewis, of Boston, Mass. (Matthew L. McGrath, of Boston, Mass., on the brief), for appellants.

Elihu D. Stone, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for the United States.

Before ANDERSON, Circuit Judge, and HALE, and MORRIS, District Judges.

MORRIS, District Judge.

The defendants, Leonard Scaffidi and Michael Daddona, alias Mike Letts, with 10 others were indicted at the December, 1927, term of the District Court for the District of Massachusetts, for conspiring on or about the 20th day of September, 1927, and on divers other dates, to violate the National Prohibition Act. They were arraigned on the 21st day of February, 1928, and pleaded not guilty. On January 2, 1929, they were set for trial before a judge and jury. On the 9th day of January, 1929, the jury returned a verdict of guilty against them. On the 10th day of January, 1929, they filed a motion in arrest of judgment based upon the ground that the indictment did not set forth an offense against the United States. On the 14th day of January, 1929, the motion in arrest of judgment was denied and sentence was imposed. The refusal of the court to grant defendants' motion is assigned as error.

The indictment alleges that the defendants "willfully, knowingly and unlawfully did conspire, combine, confederate and agree together and with divers other persons to the grand jurors unknown, to commit certain offenses against the United States; to wit: the offenses denounced by and in sections 3 and 25 of the Act of Congress of October 28, 1919, commonly known as the National Prohibition Act." This paragraph sets forth the conspiracy which is the gist of the offense.

The object of the conspiracy is more definitely set forth as follows: "It being the purpose and object of said conspiracy and of the said conspirators, and each of them, willfully, knowingly and unlawfully, at and near said Weston, Waltham and Marlboro, and divers other places in said District, the exact location of which are to your grand jurors unknown, to possess, manufacture, sell, and transport intoxicating liquor containing one half of one per cent. or more of alcohol by volume and fit for beverage purposes as defined in section 1 of title 2 of said Act of Congress (27 USCA § 4) and to have and possess property designed for the manufacture of liquor intended for use in violation of said Title II and which has been so used."

The foregoing allegations are followed by 16 overt acts in which it is alleged that the defendants hired premises in Weston and in Marlboro for which they paid rent and in which they set up a still or stills for the illegal manufacture of intoxicating liquor intended for the violation of the National Prohibition Act. It is also alleged that they did manufacture intoxicating liquor in pursuance of the conspiracy.

The overt acts set forth in the indictment are unusually full, complete, and descriptive of the means taken to carry out the conspiracy charged.

Rev. St. § 1025, U. S. Code, tit. 18, § 556 (18 USCA § 556), provides, that: "No indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant."

Under this section it has been held that, if the indictment charges the offense in such a way as to fully inform the defendant of the violation of law with which he is charged and protect him, in the event of an acquittal or conviction, against a second trial for the same offense, it is sufficient, although it may contain defects of form. The prevailing tendency is to be satisfied with substance in an indictment rather than insist upon a rigid adherence to form. Dunbar v. United States, 156 U. S. 185, 15 S. Ct. 325, 327, 39 L. Ed. 390; McNiel v. United States (C. C. A.) 150 F. 82; Rosen v. United States, 161 U. S. 29, 33, 16 S. Ct. 434, 480, 40 L. Ed. 606; Price v. United States, 165 U. S. 311, 17 S. Ct. 366, 41 L. Ed. 727.

It is argued that to allege in an indictment or information a violation of section 3 of title 2 of the National Prohibition Act (27 US CA § 12) in the language of the section does not allege a crime, because the Eighteenth Amendment prescribes against the manufacture, sale, etc., of intoxicating liquor for beverage purposes only, and not the manufacture, sale, etc., of intoxicating liquor fit for beverage purposes as the term intoxicating liquor is defined in section 1 of title 2 of the Act (27 USCA § 4).

It is within the power of Congress to enact laws to make the Eighteenth Amendment effective. Sections 1 and 3 of the National Prohibition Act are appropriate for the purpose. In the case of Massey v. United States, 281 F. 293, 295 (C. C. A. Eighth), it is said: "While neither the purchase nor the possession of intoxicating liquor is expressly mentioned in the Eighteenth Amendment, it is obvious that the penalizing of its purchase and of its possession efficiently limits the amount of the unlawful sales, manufacture, and importation of such liquor, and therefore the provisions of the National Prohibition Act prohibiting the possession of intoxicating liquor have a substantial relation to the enforcement of the Eighteenth Amendment, and are authorized by it as appropriate legislation, under the implied grant of power to select the means of enforcement. * * * The fact that such a statute may embrace some instances where the possession of the intoxicating liquors is not the result of unlawful sale, manufacture, or importation does not thwart the power of Congress to enact a prohibition, the scope of which is regarded as essential in the legislative judgment to accomplish an admitted power."

In that case there was a demurrer to a count in the information charging possession of intoxicating liquors which was overruled by the trial court. Error was assigned to that ruling on the ground that it is not sufficient to charge that liquor is unlawfully possessed without stating for what purpose it is possessed and because the information did not state what kind of intoxicating liquor was possessed or the percentage of alcohol it contained. In passing upon the defendant's assignment the court said: "Section 3 of title 2 of the National Prohibition Act 27 USCA § 12 makes it unlawful for any person, after the Eighteenth Amendment became effective, to possess intoxicating liquor, except as authorized by that act, and section 32 of title 2 27 USCA § 49 provides: `It shall not be necessary in any affidavit, information, or indictment to give the name of the purchaser or to include any defensive negative averments, but it shall be sufficient to state that the act complained of was then and there prohibited and unlawful, but this provision shall not be construed to preclude the trial court from directing the furnishing the defendant a bill of particulars when it deems it proper to do so.' By the terms of this latter section, as against a demurrer, the allegation that the possession was unlawful and prohibited by section 3 of title 2 of the National Prohibition Act was a sufficient statement of the unlawful possession, and it was not necessary to negative the purposes for which the accused might have possessed the liquor."

In the case of Davis v. United States (C. C. A.) 274 F. 928, the precise question involved in the case at bar was before the Ninth Circuit, and it was held that: In an indictment charging defendants with conspiracy to unlawfully transport, sell, etc., whisky in violation of National Prohibition Act, tit. 2, § 3 (27 USCA § 12) it is not required to aver that the whisky was not to be used for nonbeverage purposes, especially in view of the express provision of title 2, § 32 (27 USCA § 49) that: "It shall not be necessary in any * * * indictment * * * to include any defensive negative averments." See, also: Weinstein v. United States, 11 F.(2d) 505 (C. C. A. 1st); Hockett v. United States (C. C. A.) 265 F. 588; United States v. Jones (D. C.) 298 F. 131; Keith v. United States (C. C. A.) 11 F.(2d) 933; Jelke v. United States (C. C. A.) 255 F. 264, 279.

It is argued that the words "fit for beverage purposes" are not equivalent to the words "for beverage purposes." The defendants rely upon the cases of Middlebrooks et al. v. United States (C. C. A.) 23 F.(2d) 244, and Blaine v. United States (C. C. A.) 29 F. (2d) 651, 653. Both of these cases come from the Fifth Circuit. In the case of Shields v. United States (C. C. A.) 29 F.(2d) 204, the same question came up for consideration, and the distinction was made that the indictment in the Shields Case alleged that the defendants conspired to "unlawfully manufacture and possess liquor fit for beverage purposes, while the indictment in the Middlebrooks Case merely charged a conspiracy to manufacture, etc., liquor fit for beverage purposes." It appears to us that the distinction applies equally to the case at bar. It is alleged that the defendant willfully, knowingly and unlawfully conspired, etc., and it is further alleged that the purpose and object of the unlawful conspiracy was to willfully, knowingly and unlawfully possess, manufacture, sell, and transport intoxicating liquor fit for beverage purposes. To be more specific, the indictment alleges a purpose to unlawfully possess, to unlawfully manufacture, to unlawfully sell, and to unlawfully transport intoxicating liquor fit for beverage purposes. Rulovitch v. United States, 286 F. 315 (C. C. A. Third).

Unlawful manufacture of intoxicating liquor can by no stretch of the imagination be interpreted as lawful manufacture. Pierce v. United States, 252 U. S. 239, 40 S. Ct. 205, 64 L. Ed. 542; Martin v. United...