United States v. Clavin
| Decision Date | 18 April 1921 |
| Citation | 272 F. 985 |
| Parties | UNITED STATES v. CLAVIN et al. |
| Court | U.S. District Court — Eastern District of New York |
Leroy W. Ross, U.S. Atty., of Brooklyn, N.Y.
Alexander S. Drescher, of Brooklyn, N.Y., for defendants.
Defendants have moved for leave to add to their respective pleas of 'not guilty' a plea in bar, on the ground that each has been indicted and tried upon the charge contained in the indictment which has now brought them before the court, and upon such leave being granted they further move to quash the indictment, for the reason that all the issues arising thereunder by a plea of 'not guilty' have been determined by their trial under the first indictment. The motion to enter the plea in bar has been granted. This is addressed to the discretion of the court, and the effect of its allowance, if the plea is sustained, is to enable the defendants to obtain a prompt and final adjudication of their rights, and to save both the government and the defendants the inconvenience and expense of an unnecessary trial.
The first indictment charged that between June 8 and June 15 1920, the defendants conspired to commit an offense against the United States, to wit, the crime of stealing, unlawfully taking, and carrying away certain goods and chattels, a part of an interstate shipment of freight, with intent to convert the same to their own use. As overt acts, the indictment set forth: First, that defendants stole nine cases of whisky from a railroad car located in the Long Island City yards of the Long Island Railroad, a part of an interstate shipment of freight from A. Guckerheimer, Pennsylvania, consigned to the Lackawanna Supply Company, No. 18 Hulbert street, Orange N.J.; and, second, that defendants stole seven cases of whisky. They were acquitted by the verdict of the jury.
The pending indictment charges that on or about June 11, 1920 the defendants unlawfully, willfully, and knowingly stole took, and carried away, with intent to convert the same to their own use, certain goods and chattels, to wit, 16 cases of Guggenheimer whisky, which were moving as and which were part of and constituted an interstate shipment of freight, which had been sent from Guggenheimer Bros., Freeport, Pa., and consigned to the Lackawanna Supply Company, 18 Hulbert street, Orange, N.J.
The motion to quash the indictment is proper, if it clearly appears that, as a matter of law, there can be no conviction. Foster's Federal Practice (5th Ed.) pp. 1702, 1703; Riggins v. United States, 199 U.S. 547, 26 Sup.Ct 147, 50 L.Ed. 303; United States v. Grunberg (C.C.) 131 F. 137. It is urged that, as there could be no conviction upon the conspiracy charge unless an overt act was alleged and proved, the acquittal of defendants upon that charge is a judicial determination in their favor with respect to their having committed such overt act and that they...
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...by all the text writers on the subject and the great majority of the decisions. Apparently opposed to the general rule are United States v. Clavin, D.C., 272 F. 985, and United States v. Rachmil, D.C., 270 F. 869, both of which hold that an acquittal upon an indictment for conspiracy is a b......
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United States v. Halbrook, 21593.
...to the two cases relied upon by defendants in the case at bar (United States v. Rachmil et al., D.C., 270 F. 869, and United States v. Clavin, D.C., 272 F. 985) and stated that said cases are out of line with the vast majority of decisions on the In the former indictment it was only necessa......
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