Shields v. United States, 944

• Court: United States Supreme Court
• Citation: 273 U.S. 583,71 L.Ed. 787,47 S.Ct. 478
• Docket Number: No. 944,944
• Parties: SHIELDS v. UNITED STATES
• Decision Date: 11 April 1927

273 U.S. 583

47 S.Ct. 478

71 L.Ed. 787

SHIELDS

v UNITED STATES.

No. 944.

Submitted on Petition for Certiorari March 21, 1927.

Decided April 11, 1927.

Mr. E. Lowry Humes, of Pittsburgh, Pa., for petitioner.

Mr. Solicitor General Mitchell, of Washington, D. C., Mrs. Mabel Walker Willebrandt, Asst. Atty. Gen., and Mr. John J. Byrne, of Washington, D. C., for the United States.

Mr. Chief Justice TAFT delivered the opinion of the Court.

The question here for review is the judgment of the Third Circuit Court of Appeals of February 14, 1927. A petition for certiorari was filed in this court February 28, 1927, and is this day granted. For reasons to be explained, we proceed at once to consider the case on its merits.

Shields, the petitioner, was indicted and tried with eight or nine others for conspiracy to violate the Prohibition Act (Comp. St. § 10138 1/4 et seq.), and also for direct violations of the act. He was convicted of conspiracy and acquitted of the other charges. The case had been submitted to the jury February 12, 1926. Before the court convened the next morning, the jury still being out, counsel for the defendants and the assistant United States attorney in charge of the prosecution visited the trial judge in chambers and requested that the jury be held in deliberation until they should agree upon a verdict. Shortly after the opening of the court the jury returned for additional instructions on the subject of entrapment, and having received the same, retired for further deliberation. At 2:30 o'clock that afternoon the jury again returned to court, in the absence of petitioner and his counsel, and reported that they could not agree. What instructions, if any, were then given the jury the record does not disclose. It appears that the jury again retired to deliberate, and between 4:30 and 5 o'clock in the afternoon sent from their jury room to the judge in chambers the following written communication:

'We, the jury, find the defendants John G. Emmerling, Charles Lynch not guilty on all counts. E. W. Hardison, J. E. Hunter, and J. L. Simler guilty on all counts. Daniel J. Shields, Harry Widman, J. M. Gastman unable to agree.

'(Signed) E. B. Milligan, Foreman.'

The judge from his chambers sent back the following written reply:

'The jury will have to find also whether Shields, Widman, and Gastman are guilty or not guilty.

F. P. Schoonmaker, Judge.'

These communications were not made in open court, and neither the petitioner Shields nor his counsel was present, nor were they advised of them. Shortly after, the jury returned in court and announced the following verdict:

'We, the jury, find that the defendants John G. Emmerling, Charles Lynch, not guilty on all counts. E. W. Hardison, J. L. Simler, J. E. Hunter guilty on all four counts. Daniel J. Shields, Harry Widman, J. M. Gastman guilty on first count and recommended to mercy of court. Not guilty on 2d, 3d and 4th counts, this 13th day of February, 1926.

'E. B. Milligan, Foreman.'

Upon this verdict the court rendered its judgment, sentencing Shields to pay a fine of $2,000 and to be imprisoned in jail for one year. Shields then filed in court a petition alleging that not until April 21, 1926, more than two months later, did he or his counsel have any knowledge of the tentative verdict sent by the jury to the judge in chambers, or of the reply thereto by the judge, and praying that he be allowed an exception to the action of the judge in sending the reply. The court refused to grant the petition, for the reason, as stated by it:

'That counsel for the defendant Daniel J. Shields requested the court to hold the jury in deliberation until they should agree upon a verdict, and therefore, when the court received the communication from the jury, it was returned with the instructions complained of, although it is true that the defendant's counsel was not present when the communication was handed to the court from the jury.

'(Signed) Per Curiam, S.'

An exception was allowed, however, to the foregoing refusal to grant an exception, the record reciting in this respect:

'Eo die an exception to the above refusal to grant an exception is hereby noted to the defendant Daniel J. Shields.

'F. P. Schoonmaker, Judge.'

Shields took the case to the Circuit Court of Appeals, assigning among other errors the action of the District Court in sending the communication to the jury and the refusal of the court to grant an exception to that action. The Circuit Court of Appeals, in affirming the judgment, said:

'The justified reliance of court on the request of counsel, avoidance of abortive mistrials, and the timely administration of a court's work, based on the verdict of a jury which had evidence to support it, all unite in making the case one where with one breath a court can not be asked by counsel to take a step in a case, and later be convicted of error because it has complied with such request, for, as is said in 17 Corpus Juris 373, 374: 'A defendant in a criminal case cannot complain of error which he himself has invited.'

The petitioner urges first that the request joined in by counsel for the defendants, that...