United States v. Patterson

• Decision Date: 01 June 1893
• Docket Number: 1,215.
• Citation: 59 F. 280
• Parties: UNITED STATES v. PATTERSON et al.
• Court: U.S. District Court — District of Massachusetts

59 F. 280

UNITED STATES v. PATTERSON et al.

No. 1,215.

United States Circuit Court, D. Massachusetts.

June 1, 1893

Elihu Root and F. D. Allen, for the United States.

H. W Chaplin, for defendants.

PUTNAM Circuit Judge.

This case was heard on general demurrer, February 28, 1893, during the October term, 1892. 55 F. 605. The demurrer was overruled as to counts 4, 9, 14, and 18, and as to all other counts the demurrer was sustained, and the counts quashed, and the defendants were given leave to file special demurrers to the counts sustained; and, March 7, 1893, a so-called special demurrer was filed, within the time allowed therefor. This was brought to the attention of the court, and heard during the same term, May 6, 1893.

In the opinion handed down February 28th, the following occurred:

'The allegations of what was done in pursuance of the alleged conspiracy are, under this particular statute irrelevant.'

Again:

'That the means [intending the means by which the market was to be engrossed or monopolized] are alleged with reasonable precision in the remaining counts appears from the practical application of the rules of pleading appropriate to this case made in U.S. v. Waddell, 112 U.S. 76, 5 S.Ct. 35. Some of the allegations in each count may be insufficient, but these are only surplusage.'

Notwithstanding this surplusage, there was sufficient in each of the four counts which the court sustained to render them valid; and the surplusage is largely of such a character that it is entirely disconnected from the essential allegations, and may be disregarded at the trial. The pleadings, however, are very voluminous, and there may be difficulty in sifting out the insufficient allegations, especially those touching the 'means' referred to, from those which are sufficient and in determining what is thus to be regarded as surplusage; and, as to this, there may prove to be at the trial differences of opinion between the counsel for the United States, the counsel for defendants, and the court. As the indictment runs against many parties, scattered through several states, at remote distances from each other and from the place of trial, and as its subject-matter is complex, and involves a great number of transactions, it appeared to the court that the trial, at the best, would be burdensome and expensive, both for the United States and the accused, and that on this account it was important to minimize this by settling in advance, if it could be done, what should be held to be surplusage. The court was well aware that what are ordinarily spoken of as special demurrers find their origin in the statutes 27 Eliz. and 4 & 5 Anne, and have been held to be limited to procedings in the nature of civil suits; but it had in thought that, independently of these special demurrers by statute, there was at common law a special demurrer lying against surplusage, which reached also indictments and criminal informations. Such the court understands to be the statement of the law in Chit. Pl. (7th Eng. Ed.) 253. The court had no intention that the questions which had been fully raised and carefully argued under the general demurrer should again be brought to its attention, and no other intention than that of assisting in simplifying the course of the trial as above explained. The court is, however, now forced to the conclusion that surplusage in indictments cannot be reached by demurrer of any character. Such is positively laid down as the law in Steph. Pl. (3d Amer. Ed.) 365; Heard, Crim. Pl. 140, 271; and is also stated by Lord Cranworth in Mulcahy v. Reg., L. R. 3 H. L. 306, 329. If, however, the law is otherwise, and surplusage and irrelevant matter in indictments may be made the subject of a special or limited demurrer, what has been filed by the defendants in this case, under leave granted February 28th, would be insufficient, because it is expressed in general terms, and requires the counsel for the United States and the court to search through the indictment for what is claimed to be demurrable, when, by all the rules of pleading, it ought to set out the specific language objected to, and ask the ruling of the court on that alone. The reason touching this proposition stated in Story, Eq. Pl. § 457, applies everywhere. Clearly is this so in this case, because this so-called 'special demurrer' is expressly to the entire 4th, 9th, 14th, and 18th counts; and, although it assigns as grounds of demurrer that certain portions of each of those counts are insufficient, yet it does not specifically demur to any part or parts.

It seemed to the court that there must be some way by which, as a matter of right, parties brought in on a complex and voluminous indictment may have settled in advance of the trial what portions of it, if any, are surplusage. It has been frequently said--certainly with reference to civil proceedings--that surplusage might be rejected on summary motion, and the pleadings left to stand as though it had been struck out or never inserted. Gould, Pl. (4th Ed.) c. 3, § 170; Chit. Pl. (7th Eng. Ed.) 252; and many other authorities. It also has been understood that in criminal cases it might be disposed of to a certain extent by a nolle prosequi, and that this would apply to a separable part of any one count, as well as to the whole of a count, or to an entire indictment. Bish. Crim. Proc. (3d Ed.) § 1391. The general expressions, however, of...