United States v. American Tobacco Co.

CourtUnited States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
Citation177 F. 774
PartiesUNITED STATES v. AMERICAN TOBACCO CO.
Decision Date10 March 1910

177 F. 774

UNITED STATES
v.
AMERICAN TOBACCO CO.

United States District Court, W.D. Kentucky.

March 10, 1910


George Du Relle, Dist. Atty., for the United States.

J. Parker and Gibson, Marshall & Gibson, for defendant. [177 F. 775]

EVANS, District Judge.

The indictment charging the defendant with receiving rebates from a railroad company was returned by the grand jury on December 2, 1909. The process issued thereon was served February 4, 1910. On February 23d the defendant filed a duly verified plea in abatement, expressed as follows:

'Comes the defendant, the American Tobacco Company, and offers herein its plea in abatement of the indictment against it herein, and for cause thereof respectfully shows to the court and alleges the facts to be as follows, to wit: One S. H. Smith is a lawyer attached to, and in the service of the Interstate Commerce Commission as special agent. Said commission, under the power granted it by law, sent its agent or agents to Louisville, Kentucky, the first of said agents being said S. H. Smith, who, with others, under instructions and powers given them, examined the books records, vouchers, letters, and other papers of the Louisville, Henderson & St. Louis Railway Company to see if there had been any violation of any of the provisions of the interstate commerce law as amended. Said agent or agents made said examination, and reached the conclusion that the transactions described in the indictment herein were unlawful and forbidden by law. Upon the facts, or alleged facts, being reported to said commission, it sent out to Louisville, Kentucky, from Washington, D.C., the aforesaid S. H. Smith as its attorney and agent to endeavor to procure indictments against this defendant and others The said Smith did come to Louisville for said purpose, and was thereafter in frequent and protracted conferences with the district attorney, the said conferences and each of them having for their sole purpose and object the bringing about, and procuring, if it could be done, of an indictment or indictments against this defendant and others. At the instance of the government, this court ordered the convening of a special grand jury to inquire into the alleged offenses, and the said special grand jury, so convened, found the indictment herein. Numerous witnesses were sent into the grand jury room with various records, letters, papers, and documents which they had been required to present before the grand jury, and said witnesses testified before said grand jury and produced before said grand jury the various records and documents aforesaid, and they were examined in the grand jury room, with the said records, documents, etc., and testified before the grand jury concerning the same. Said Smith was in fact the leading active agent of the government in its efforts to procure indictments against this defendant and others on account of the matters set out in the indictment herein. He directed, controlled, and dominated the proceedings taken before and during the sessions of the special grand jury which found said indictment. Said Smith furnished the names of the witnesses to the district attorney, and also indicated the papers and documents which said witnesses should be required to produce before said grand jury, and throughout the session of the grand jury he was in constant attendance in the office of the district attorney, advising with him and directing the proceedings before the grand jury. He was constantly kept advised by the district attorney of what was occurring in the grand jury room and before the grand jury, and was thereby enabled to, and did, advise and direct the course of proceedings before it. The district attorney examined the witnesses who appeared before the grand jury, and was attended by his assistant, who is a stenographer, and who took down in shorthand notes the evidence given by the various witnesses. Frequently during the examination of witnesses before the grand jury, the district attorney would suspend the examination, withdraw with his assistant from the grand jury room, leaving the witness in attendance, and then have the evidence of the witness under examination read to said Smith by the assistant district attorney, and receive suggestions from him as to the further examination of the witness, which suggestions were then acted on by the district attorney. When all other witnesses had been examined, the said Smith appeared before the said grand jury as a witness. He had no personal knowledge of any of the facts alleged in the indictment, but was only in possession of information obtained in the course of his investigation, and knew what evidence had been heard. He [177 F. 776] appeared before the grand jury as an attorney representing the Interstate Commerce Commission, whose special duty it was at the time to have said grand jury indict this defendant and others for violation of the interstate commerce law, and in that capacity he testified and gave to the grand jury his views, opinions, and argument, to the effect that the evidence heard by the grand jury was sufficient to warrant the finding of an indictment, and as an agent of the government manifested before the grand jury his earnest desire and that of the government and Interstate Commerce Commission that an indictment should be found against this defendant and others. Defendant says that the matters herein set out are true as it verily believes, and alleges that they were in violation of law, and prevented a fair and impartial investigation by the grand jury, and exerted an undue influence on said grand jury, to the great detriment and prejudice of this defendant.'

The United States demurs to the plea, and, of course, thereby admits the truth of its averments. We may look at the plea from several points of view:

First. Assuming it to be true that Smith...

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14 practice notes
  • United States v. Gilboy, Crim. No. 12880.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 6 February 1958
    ...If true, that would not support a motion to dismiss an indictment. See and cf. United States v. American Tobacco Co., D.C.W.D.Ky.1910, 177 F. 774, at page 777, and see Proceedings, Institute Federal Rules of Criminal Procedure, New York University School of Law, p. 180; United States v. Smy......
  • State v. Beck, 34636
    • United States
    • United States State Supreme Court of Washington
    • 3 February 1960
    ...from various decisions. Agnew v. United States, 165 U.S. 36, 17 S.Ct. 235, 41 L.Ed. 624; United States v. American Tobacco Co., D.C., 177 F. 774; United States v. Nevin, D.C., 199 F. 831, 833; United States v. Gradwell, D.C., 227 F. 243. The dictum in United States v. Wells, supra, so far a......
  • United States v. McKay, 25950.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 18 July 1942
    ...Ard v. United States, 5 Cir., 54 F.2d 358; Chafin v. United States, 4 Cir., 5 F.2d 592, 595; United States v. American Tobacco Co., D.C., 177 F. 774, 777. In the Court's opinion neither of the statutes relied upon by the Government is applicable to the present case. It is well settled that ......
  • United States v. Lehigh Valley R. Co., 5901.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • 19 August 1930
    ...to hold that the plea is not sufficient, and that the demurrer thereto should be sustained." United States v. American Tobacco Co. (D. C.) 177 F. 774, "While it is the rule in many jurisdictions that the court will not inquire into the sufficiency of the evidence before the grand jury, the ......
  • Request a trial to view additional results
14 cases
  • United States v. Gilboy, Crim. No. 12880.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 6 February 1958
    ...If true, that would not support a motion to dismiss an indictment. See and cf. United States v. American Tobacco Co., D.C.W.D.Ky.1910, 177 F. 774, at page 777, and see Proceedings, Institute Federal Rules of Criminal Procedure, New York University School of Law, p. 180; United States v. Smy......
  • State v. Beck, 34636
    • United States
    • United States State Supreme Court of Washington
    • 3 February 1960
    ...from various decisions. Agnew v. United States, 165 U.S. 36, 17 S.Ct. 235, 41 L.Ed. 624; United States v. American Tobacco Co., D.C., 177 F. 774; United States v. Nevin, D.C., 199 F. 831, 833; United States v. Gradwell, D.C., 227 F. 243. The dictum in United States v. Wells, supra, so far a......
  • United States v. McKay, 25950.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 18 July 1942
    ...Ard v. United States, 5 Cir., 54 F.2d 358; Chafin v. United States, 4 Cir., 5 F.2d 592, 595; United States v. American Tobacco Co., D.C., 177 F. 774, 777. In the Court's opinion neither of the statutes relied upon by the Government is applicable to the present case. It is well settled that ......
  • United States v. Lehigh Valley R. Co., 5901.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • 19 August 1930
    ...to hold that the plea is not sufficient, and that the demurrer thereto should be sustained." United States v. American Tobacco Co. (D. C.) 177 F. 774, "While it is the rule in many jurisdictions that the court will not inquire into the sufficiency of the evidence before the grand jury, the ......
  • Request a trial to view additional results

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