United States v. Dowling

• Decision Date: 02 February 1922
• Docket Number: 1440-1442.,1424
• Citation: 278 F. 630
• Court: U.S. District Court — Southern District of Florida
• Parties: UNITED STATES v. DOWLING et al. (two cases). SAME v. LINDSAY et al. SAME v. BRYAN et al.

278 F. 630

UNITED STATES v. DOWLING et al. (two cases). SAME v. LINDSAY et al.

SAME v. BRYAN et al.

Nos. 1424, 1440-1442.

United States District Court, S.D. Florida.

February 2, 1922

Wm. M Gober, U.S. Atty., of Lakeland, Fla., and Damon G. Yerkes Asst. U.S. Atty., of Jacksonville, Fla.

Geo. M Powell, J. T. G. Crawford, Cockrell & Cockrell, John E Mathews, W. A. Hallowes, Jr., and Edgar W. Waybright, all of Jacksonville, Fla., for defendants.

CLAYTON District Judge.

The defendants are indicted in these four cases for conspiracy to violate the National Prohibition Act (41 Stat. 305). On December 20, 1921, each defendant in each case filed demurrers to the indictments, motions to quash, and motions for bills of particulars. For the purpose of considering such demurrers and motions, the cases are consolidated and heard at the same time.

While there are different defendants in each case, the counts of the indictments are alike in the material aspects, as it will hereinafter appear. Inasmuch as the demurrers and the motions to quash are based upon identical grounds, such motions will not be separately considered, for that is not deemed necessary.

The motion for a bill of particulars need not be passed upon, if the indictments are so fatally defective in the statements of facts alleged to constitute the offense charged that conviction or acquittal upon the indictments would constitute no bar to another prosecution for the same offense. If the indictments are not deemed substantially good, bills of particulars will not be ordered, for a bill of particulars cannot cure a bad pleading. It is because the indictment is good against a general demurrer that the defendant is compelled to resort to a motion for a bill of particulars. If, however, it is bad, the remedy is by demurrer or motion in arrest of judgment. U.S. v. Tubbs (D.C.) 94 F. 356, 360; Floren v. U.S., 186 F. 961, 964, 108 C.C.A. 577.

The first counts in each indictment are legally identical and they charge:

'That on, to wit, the (naming the day) day of (naming the month and year), at Jacksonville, Florida, in the district aforesaid, and within the jurisdiction of this court (naming the defendants) unlawfully, willfully, knowingly, feloniously, and maliciously did combine, conspire, confederate, and agree together, and together with divers other persons, whose names are to the grand jurors unknown, to commit an offense against the United States; that is to say, to violate title 2 of the National Prohibition Act in this, to wit, that the said (naming the defendants) would then and there possess certain intoxicating liquors to wit (here stating the number of cases of liquor), contrary to the provisions of said act.'

It is not stated in indictment No. 1441 at what place in said district the alleged conspiracy was entered into; and in indictment No. 1424 it is not charged that divers other persons were parties to the conspiracy, as it is done in indictments 1441 and 1442. In other respects, all four of these counts are legally the same in the four indictments.

The first seven grounds of demurrer are:

'(1) That the said count of said indictment does not allege facts sufficient to show the commission by the said defendant of any offense against any law of the United States.

'(2) It is not made to appear, by any issuable allegations of fact in said count contained, what section of title 2 of the National Prohibition Act it will be claimed or sought to be proved the said defendants violated.

'(3) That said count of said indictment is so vague, indefinite, and uncertain that it does not fairly or sufficiently inform the said defendant of the charge he is expected to meet at the trial.

'(4) That it is not made to appear by any issuable allegations of fact in said count of said indictment contained in what county of said district it will be claimed or sought to be proved that the said alleged offense was committed.

'(5) The accusatory part of said count is so vague, indefinite, and uncertain that a judgment upon a trial would not protect the said defendant against a subsequent prosecution.

'(6) The alleged conspiracy is not clearly and definitely charged.

'(7) No plan or scheme whereby an offense against the United States was to be committed is alleged.'

Let us now turn to the language of the indictments purporting to impart to the defendants the information as to what particular offense it is charged that the defendants conspired to commit. It is charged:

'That they unlawfully,' etc., 'did combine, conspire,' etc., 'to commit an offense against the United States, that is to say, to violate title 2 of the National Prohibition Act, in this, to wit, that the said (naming defendants) would then and there possess certain intoxicating liquors, to wit (here stating the number of cases), contrary to the provisions of said act.'

To say that they conspired to commit an offense against the United States is but a conclusion of the pleader. It is not a statement of facts. But it is further alleged that the defendants conspired to violate title 2, etc., in that they 'would then and there possess certain intoxicating liquors,' the character or kind not stated, 'contrary to the provisions of said act.'

Examination of the act reveals that it has 39 sections. Section 4 provides that denatured alcohol, rum, certain medicinal antiseptic preparations, patent and proprietary remedies, toilet and antiseptic articles, flavoring extracts, syrups, vinegar, and sweet cider may be manufactured, and of course may be possessed and transported, provided the person doing so acts under the permit and regulations contemplated in the act. All the articles above enumerated come within the definition of intoxicating liquors as contained in section 1 of the act. If the articles mentioned do not conform to descriptions and to prescribed regulations, the manufacturer is not protected, and his possession would be unlawful, and any one who purchased from him would participate in unlawful possession. Further examination of the act shows that intoxicating liquors may be in other ways unlawfully possessed. It is urged that the vice of the indictment is that the particular manner or way in which the offense was committed is not stated.

The settled rules governing here are that a crime should not be charged by way of inference, but directly; the indictment should set forth accurately every ingredient of which the offense is composed; if the crime is made up of acts and intent, these must be set forth with reasonable particularity as to the time and place; the accused should be informed by the indictment as to the precise nature of the charge against him, to enable the court to say as to whether the facts set forth are sufficient in law to support a conviction; and the test is whether the indictment contains every element of the offense and sufficiently informs the defendant of what he must meet, and also whether it will enable him to sustain a plea of former acquittal or conviction. Johnston v. U.S., 87 F. 187, 30 C.C.A. 612; U.S. v. Cruikshank, 92 U.S. 543, 23 L.Ed. 588; Blitz v. U.S., 153 U.S. 308, 14 Sup.Ct. 924, 38 L.Ed. 725; Brown v. U.S., 143 F. 60, 74 C.C.A. 214; Floren v. U.S., supra; Harper v. U.S., 170 F. 385, 95 C.C.A. 555. Other illustrative cases hold that:

The indictments must set forth the facts and not the law, U.S. v. Nixon, 235 U.S. 231, 235, 35 Sup.Ct. 49, 59 L.Ed. 207, that an indictment, even if in the words of the statute, must set forth all the elements of the offense, Martin v. U.S., 168 F. 198, 93 C.C.A. 484; that although the language of the statute is employed in the general description of the offense, it must be accompanied with such statement of facts and circumstances that will inform the accused of the specific offense, coming under the general description of the offense, with which he is charged, and that it must descend to particulars. U.S. v. Hess, 124 U.S. 483, 487, 8 Sup.Ct. 571, 31 L.Ed. 516.

In U.S. v. Beiner, 275 F. 704, 708, District Judge Orr, in considering an indictment very like these here, said:

'Inasmuch as section 37 of the Criminal Code denounces a conspiracy to commit any offense against the United States, and inasmuch as the indictment drawn under that section, and now under consideration, does not set forth which of many offenses denounced by the Volstead Act the accused had conspired to commit, the indictment must be deemed to be insufficient.'

And it must be said that the words 'to commit an offense against the United States' and 'to violate title 2 of the National Prohibition Act,' and that the defendants 'would then and there possess certain intoxicating liquors, to wit (naming a specified number) cases, contrary to the provisions of said act,' cannot render the indictments good. These words amount to no more than to say that the alleged possession was contrary to law. In Keck v. U.S., 172 U.S. 434, 19 Sup.Ct. 254, 43 L.Ed. 505, it was charged that the defendant did 'knowingly, willfully, and unlawfully import and bring into the United States to wit, into the port of Philadelphia,' diamonds of a stated value, 'contrary to law and the provisions of the act of Congress in such cases made and provided. ' The allegations were held insufficient-- that the allegations were too general, and did not give the defendant the requisite information of the nature of the accusation against him. Chief Justice White, for the court, said that:

'As is apparent, the alleged offense averred in this count was charged substantially in the words of the statute. In the argument at bar counsel for the United States conceded the vagueness of the accusation thus made; and, tested by the principles laid down in U.S. v. Carll, 105...