Stewart v. United States

• Decision Date: 07 June 1926
• Docket Number: No. 4496.,4496.
• Citation: 12 F.2d 524
• Parties: STEWART et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

12 F.2d 524 (1926)

STEWART et al. v. UNITED STATES.

No. 4496.

Circuit Court of Appeals, Ninth Circuit.

May 3, 1926.

Rehearing Denied June 7, 1926.

G. M. Spicer, of Long Beach, Cal., and C. W. Pendleton, of Los Angeles, Cal. (Hugh F. Keon, Jr., and Edward A. O'Dea, both of San Francisco, Cal., of counsel), for plaintiff in error Stewart.

Chas. J. Wiseman, Hugh L. Smith, and James M. Hanley, all of San Francisco, Cal., for plaintiff in error Miller.

Mack Meader and Chas. Scholz, both of Los Angeles, Cal., for plaintiffs in error Miller and Lund.

Robert O'Connor, of Los Angeles, Cal., for plaintiff in error Kubota.

Samuel W. McNabb, U. S. Atty., and Mark L. Herron, Sp. Asst. U. S. Atty., both of Los Angeles, Cal.

Before HUNT, RUDKIN, and MORROW, Circuit Judges.

RUDKIN, Circuit Judge.

The indictment in this case contains four counts, and names numerous defendants. The first and fourth counts charge conspiracies to commit certain offenses against the United States. The second count charges that the defendants did knowingly, willfully, unlawfully and feloniously, and with intent to defraud the revenues of the United States, smuggle and clandestinely bring into the United States from the Dominion of Canada certain intoxicating liquors without having the same invoiced and without having paid the duty prescribed by law. The third count charges that the defendants did knowingly, willfully, unlawfully, and feloniously, and with intent to defraud the revenues of the United States, smuggle and clandestinely bring into the United States from the Dominion of Canada the same intoxicating liquors without having first obtained a permit from the Commissioner of Internal Revenue of the United States.

As to the defendant Stewart, the jury returned a verdict of guilty as to counts 2 and 3, and not guilty as to counts 1 and 4; as to the defendant Kubota, a verdict of guilty as to counts 1, 2, and 3, and not guilty as to count 4; as to the defendant Miller, a verdict of guilty as to all four counts, and, as to the defendant Lund, a verdict of guilty as to all four counts.

The defendants above named have sued out a writ of error to review the judgment of conviction, but no brief has been filed on behalf of either Kubota or Lund.

At the commencement of the trial, by consent of counsel for all parties, the court struck from the body of counts 2 and 3 of the indictment, as surplusage, the words "feloniously and" in one place, and the words "and feloniously" in another. This action on the part of the court is now assigned as error. The assignment is well taken. In Ex parte Bain, 121 U. S. 1, 13, 7 S. Ct. 781, 787 (30 L. Ed. 849), the trial court struck six words from the indictment, as surplusage, and in discharging the petitioner on habeas corpus the Supreme Court said:

"It only remains to consider whether this change in the indictment deprived the court of the power of proceeding to try the petitioner and sentence him to the imprisonment provided for in the statute. We have no difficulty in holding that the indictment on which he was tried was no indictment of a grand jury. The decisions which we have already referred to, as well as sound principle, require us to hold that after the indictment was changed it was no longer the indictment of the grand jury who presented it. Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney; for, if it be once held that changes can be made by the consent or the order of the court in the body of the indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment as thus changed, the restriction which the Constitution places upon the power of the court, in regard to the prerequisite of an indictment, in reality no longer exists. It is of no avail, under such circumstances, to say that ...