United States v. Lehigh Valley R. Co.

• Decision Date: 19 August 1930
• Docket Number: No. 5901.,5901.
• Citation: 43 F.2d 135
• Parties: UNITED STATES v. LEHIGH VALLEY R. CO. et al.
• Court: U.S. District Court — Western District of Pennsylvania

43 F.2d 135 (1930)

UNITED STATES v. LEHIGH VALLEY R. CO. et al.

No. 5901.

District Court, M. D. Pennsylvania.

August 19, 1930.

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Andrew B. Dunsmore, U. S. Atty., of Wellsboro, Pa., and William J. Walsh, Sp. Asst. to U. S. Atty., of Washington, D. C.

Knapp, O'Malley, Hill & Harris, of Scranton, Pa., and John T. Brady, of Harrisburg, Pa., for defendants.

WATSON, District Judge.

The defendants were indicted on October 29, 1929, for a violation of the Elkins Act (U. S. Code, title 49, § 41 49 USCA § 41). They have filed pleadings attacking the validity of the indictment. Each defendant has filed a plea in abatement the legal sufficiency of which the government attacks by demurrers. Each defendant has also filed a motion to quash, and in each case a rule was granted to show cause why the indictment should not be quashed. Both proceedings have been adopted by counsel for defendants in order to avoid a possible denial of their claims upon purely technical grounds. Ordinarily, motions to quash indictments are based upon matters suggested by the record; whereas, pleas in abatement are founded upon allegations of fact dehors the record. U. S. v. Goldman (D. C.) 28 F.(2d) 424, 432. The pleas in abatement in each instance contain the following allegations:

"1. That the only witnesses appearing before the Grand Jury in the above stated case were E. W. Stewart and C. M. Young, employees of the Interstate Commerce Commission; that the said witnesses could have no personal knowledge of the acts set forth in the said indictment and the facts necessary to justify such an indictment; that their testimony would be merely hearsay and incompetent; and that there could have been no competent testimony before the Grand Jury to warrant or justify the said indictment."

"2. That witnesses were subpoenaed, with records, but were not permitted to go before the said Grand Jury, their records being taken by the said E. W. Stewart, and were used by him before the said Grand Jury, without proper proof of the said records."

"3. That in taking possession of the books and records of the Defendants and other witnesses and presenting them to the said Grand Jury, the said witnesses overstepped the bounds of permissible activities of a witness, and the indictment based upon such testimony is null and void and of no force or effect."

"4. The essence of the offense attempted to be denounced in the indictment in this case was the transportation of property over the through routes mentioned in the indictment, and in every count thereof, and through this district. No competent evidence of such transportation was presented before the said Grand Jury, either in the form of oral testimony or documentary evidence."

"5. (5, in plea filed by Reading Company and in plea filed by Joseph A. Fisher; 6, in plea filed by the Lehigh Valley Railroad Company). That the evidence presented before the said Grand Jury, even if the same had been presented by competent witnesses, was competent only to disclose a violation, not of the Elkins Act, title 49, section 41, United States Code (49 USCA § 41), but a violation of Section 10 of title 49, being false billing or classification, of which offense this Court would have no jurisdiction, as the indictment upon its face shows the billing to have been done in the City of Philadelphia, in the Eastern District of Pennsylvania."

The plea in abatement filed by the Lehigh Valley Railroad Company contains, in addition to the above quoted, the following allegation:

"6. That the evidence presented before the said Grand Jury, even if the same had been presented by competent witnesses, was competent to disclose only a violation, not of the Elkins Act, title 49, Section 41, United States Code (49 USCA § 41), but a violation of section 10, of title 49, being false billing or classification, of which offense this Court would have no jurisdiction, as the indictment upon its face shows the billing to have been done in the City of Philadelphia, in the Eastern District of Pennsylvania."

As to paragraph 1 of the pleas in abatement, there is the allegation that Stewart and Young were employees of the Interstate Commerce Commission, but that is as far as it goes. There is nothing said as to whether or not Stewart and Young were employees of the railroad company, nor is any reason given why they could not have knowledge of the facts in connection with the offenses. The fact that they were employed by the Interstate Commerce Commission is no reason at all. Here the pleas lack the certainty which is required in pleas in abatement, and the court will not supply the omissions.

At this point I shall refer to some of the general principles which are applicable to pleas in abatement in criminal cases and which may be applied to the pleas filed in this case.

"`The certainty required of pleas in abatement is extreme. In the language of the old books, they must be certain "to a certain intent in every particular." They must leave, "on the one hand, nothing to be supplied by intendment or construction; and, on the other, no supposable special answer unobviated."' State v. Duggan, 15 R. I. 413, 6 A. 597. `* * * Matters of form in them are regarded as matters of substance. They are construed most strongly against the pleader, and cannot be sustained unless they negative the existence of every fact, and repel every inference, however slight, crossing the matter relied on in the plea. Powers v. State, 4 Ala. 531; State v. Brooks, 9 Ala. 9; Roberts v. Heim, 27 Ala. 678.'" United States v. Janes (D. C.) 74 F. 543, 544.

"It is well settled that pleas in abatement are not favored in law, that they are to be strictly construed, and that the courts will not supply omissions therefrom." Hillman v. United States (C. C. A.) 192 F. 264, 267.

"For the purpose of considering the demurrer, the plea must be taken as true. Pleas in abatement are not favored in law, and are construed with great strictness. The courts will not supply omitted material averments, nor cure defective ones by inference. Any inference indulged in by the court must be against the pleader. It is his duty to set forth in his plea in clear, definite, and positive language the facts relied upon. All the authorities agree that great strictness and accuracy are required in pleas in abatement, and `no latitude in practice is extended to them.' Epperson v. State, 5 Lea (Tenn.) 291; Baker v. Compton, 2 Head (Tenn.) 471; State v. Bryant, 10 Yerg. (Tenn.) 527." United States v. Standard Oil Co. of Indiana (D. C.) 154 F. 728, 733.

"This is important in view of the rules applicable to such pleas, one of which strictly exacts the most explicit averments, and another of which requires the plea to be presented with the greatest promptness — general rules which are applied not merely to objections to the formation of a grand jury, but to all those matters of abatement which, in the technical sense, are dilatory, and which even if sustained do not finally dispose of the subject-matter of the indictment. * * * "Pleas in abatement, being designed to avoid a trial on the merits, are not only strictly construed but are not often favored by the courts, as this plea would be if it had come up to the rules we have noticed. We are therefore constrained 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, 777.

"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 decisions of the Supreme Court and those of most of the inferior federal courts have been to the effect that an indictment cannot be abated, on account of the admission of incompetent or hearsay testimony, unless it affirmatively appear in the plea that no competent evidence of the commission of the offense charged therein was presented to the grand jury, or unless all of the evidence was unlawfully procured in violation of substantial rights of the accused, so as to subject it to exclusion if offered against him. Holt v. United States, 218 U. S. 245, 31 S. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138; Chadwick v. United States (C. C. A.) 141 F. 225; United States v. Standard Oil Co. (D. C.) 154 F. 728; Hillman v. United States (C. C. A.) 192 F. 264; McKinney v. United States (C. C. A.) 199 F. 25; Anderson v. United States (C. C. A.) 273 F. 20; United States v. Morse (D. C.) 292 F. 273; United States v. Silverthorne (D. C.) 265 F. 859. And it is uniformly held that a plea in abatement to an indictment, being a dilatory plea and not favored in law, must be pleaded with strict exactness and with certainty, accuracy, and completeness, and must set forth facts, and not conclusions of law, nor evidence of facts, and that every inference must be against the pleader.

"The pleas here fall short of compliance with the rule. The defendants could have had no personal knowledge of the evidence submitted to the grand jury. The verification of each states that the contents of his plea are true `as he verily believes.' It has been held — properly, we think — that a plea of abatement to an indictment on information and belief is insufficient, United States v. Bopp (D. C.) 232 F. 177; United States v. Morse (D. C.) 292 F. 273, 278." Olmstead v. United States (C. C. A.) 19 F.(2d) 842, 845, 53 A. L. R. 1472.

"Another general rule is that, for such irregularities as do not prejudice the defendant, he has no cause of complaint, and can take no exception. United States v. Richardson C. C. 28 F. 61; United States v. Reed, 2 Blatchford, 435, 456, Fed. Cas. No. 16,134; United States v. Tallman, 10 Blatchford, 21, Fed. Cas. No. 16,429; State v. Mellor, 13 R. I. 666; Cox v. People, 80 N. Y. 500; People v. Petrea, 92 N. Y. 128; * * * and, moreover, the plea is fatally defective in that, although it is stated that the drawing `tended to his injury and prejudice,' no...