United States v. McConnell
| Decision Date | 04 February 1926 |
| Docket Number | No. 14.,14. |
| Parties | UNITED STATES v. McCONNELL et al. |
| Court | U.S. District Court — Western District of Pennsylvania |
George W. Coles, U. S. Atty., and Francis B. Biddle, Asst. U. S. Atty., both of Philadelphia, Pa.
Henry W. Braude, George S. Russell, Murdoch Kendrick, and John C. Bell, all of Philadelphia, Pa., for defendants.
The indictment contains five counts, each charging a separate conspiracy of the several defendants to commit an offense against the United States, in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.), "to wit, to unlawfully withdraw, transport, sell, and deliver intoxicating liquors, in violation of the National Prohibition Act." McConnell is charged as federal prohibition director for the state of Pennsylvania, Slater as federal prohibition agent, and Benner as federal prohibition inspector.
Each count charges a conspiracy as part of the general charge to issue and deliver certain permits for the withdrawal of liquor to persons not lawfully entitled as permittees to receive such permits. Count 1 makes this charge as to permit No. 44051, count 2 as to permit No. 24052, count 3 as to permit No. 41603, count 4 as to permits Nos. 41601, 41602, and 41604, and count 5 as to permit No. 43389.
The third reason assigned for quashing the indictment is: "Because the defendant cannot be convicted under any of the counts of the present indictment, unless it is shown that he had knowledge of the unlawful withdrawal, transportation, sale, or delivery of liquor following the issue of permits respectively mentioned in the counts, and in the previous case it has been determined in a prosecution by the United States against this same defendant, where such knowledge was one of the issues of the case, that he did not have knowledge of the withdrawal, transportation, sale, or delivery, following the issue of any of the permits specified in the present indictment."
"The previous case" referred to in the motion to quash was a prosecution under an indictment in this court as of March term, 1922, No. 14. To that indictment, charging a conspiracy of the present defendants and 44 others to defraud the United States in issuing and causing to be issued fraudulent permits by McConnell, Benner, and Slater to be used by others in obtaining liquor from vendors for unlawful sale, delivery, and transportation, demurrers were filed which were overruled. See United States v. McConnell et al. (D. C.) 285 F. 164.
The main question discussed upon the demurrers was whether the indictment charged was a general conspiracy among the defendants named or an attempt to join as a single conspiracy a number of separate conspiracies. It was there held that "The question whether the conspiracy charged in the indictment to be a general one among the defendants named, which is to be executed through different parties to the general conspiracy by different acts, at different times, and in different places, is indeed a single conspiracy, is a question of fact, and, if the indictment sufficiently charges such a general conspiracy formed knowingly, willfully, and unlawfully, it should not be held void because of the mere division of the entire class of conspirators into several groups having respectively different acts and functions to perform." It was also said
The defendants charged in the present indictment, together with other defendants were brought to trial under the prior indictment in this court, and upon the failure of the prosecution in any manner to connect the several groups with the general conspiracy charged, and the failure to prove knowledge upon the part of McConnell, Slater, or Benner, that the permits, upon which the indictment was based were unlawfully issued for the withdrawal of liquor in amounts and character other than those to which the permittees were lawfully entitled, or to persons not permittees, or in the names of permittees who had not made applications for permits, the defendants were acquitted upon a directed verdict. It appears conclusively that guilty knowledge concerning each of the permits upon which the several counts in the indictment now before us are based was in issue in the former indictment, and that the prosecution failed to produce any evidence of guilty knowledge of the three defendants now under indictment concerning any of the permits mentioned in the present indictment.
Count 1 of the present indictment charges the unlawful issuing of permit No. 44051, which was charged as overt acts 20 and 21 of the former indictment and in the bill of particulars. Permit No. 24052, which is the subject of count 2 of the present indictment, was also the subject of overt act 1 in the former indictment. Permit No. 41603, which is the subject of count 3 of the present indictment, was the subject of overt act 10 of the former indictment. Permits No. 41601, 41602, and 41604, which are the subjects of count 4 of the present indictment, were respectively the subjects of overt acts 6, 8, and 12 of the former indictment. Permit No. 43389, which is the subject of count 5 of the present indictment, was not the subject of a charge in the former indictment, but was the subject of paragraph 137 of the bill of particulars.
The prosecution, moreover, put the unlawful issuance of this permit in issue...
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...to the defendant's participation, and thus served as ground to quash a later indictment for conspiracy. The Court in United States v. McConnell, D.C.E.D.Pa.1926, 10 F.2d 977 held a prior acquittal for fraud to be conclusive as to the issuance of false permits alleged in a later indictment f......
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...It has been so held where one prosecution was for the substantive offense and the other for conspiracy to commit it. United States v. McConnell, D.C., 10 F.2d 977; United States v. Meyerson, D.C., 24 F.2d 855; United States v. Morse, D.C., 24 F.2d 1001; United States v. De Angelo, 3 Cir., 1......
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Commonwealth v. Moon .
...are founded upon the maxim nemo debet bis vexari pro eadem causa. Broom, Leg. Max., 265. See United States v. McConnell et al., D. C., 10 F.2d 977. We recognize, as defendant points out, that “a verdict of acquittal or conviction on an indictment for the minor offense is a bar to a trial on......
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Commonwealth v. Moon
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