United States v. Weiss

• Decision Date: 03 December 1923
• Citation: 293 F. 992
• Parties: UNITED STATES v. WEISS et al.
• Court: U.S. District Court — Northern District of Illinois

293 F. 992

UNITED STATES v. WEISS et al.

United States District Court, N.D. Illinois, Eastern Division.

December 3, 1923

Edwin A. Olson, U.S. Atty., and Edwin Weisl, both of Chicago, Ill for the United States.

John B Boddie, of Chicago, Ill., for Fabbini.

Charles Erbstein, of Chicago, Ill., for Van Natta.

Charles A. Williams and Marcia Eisner Lewis, both of Chicago, Ill for Behrens.

LINDLEY District Judge.

Defendants Behrens, Groeninger, and Vannatta are indicted, with others under section 37 of the Criminal Code (Comp. St. Sec. 10201); the indictment being in six counts, the first charging the defendants and others with having conspired continuously from July 1, 1920, to September 1, 1920, to commit 'the offense of unlawfully selling, * * * in violation of the National Prohibition Act, for beverage purposes, * * * intoxicating liquor. ' Various overt acts are alleged, including the purchase of liquor from John D. Park & Sons Company, at Cincinnati, Ohio, the contribution of funds for said purpose, the solicitation of purchasers, and the receipt by Vannatta from one Fox of the sum of $10,600 for part of said liquor. The counts, other than the first, differ from it only in that they charge conspiracy to 'possess' (second count), to 'deliver' (third count), to 'furnish' (fourth count), to 'purchase' (fifth count), and to 'transport' (sixth count), in violation of the National Prohibition Act (41 Stat. 305), said liquor. The overt acts set out in the different counts are not materially variant.

Each of the three defendants named filed a plea of former jeopardy, alleging that they, with the other defendants in this indictment, except one Hoss, were defendants in a charge of conspiracy in cause No. 9397, in the same court;» that in said cause the defendants were charged with conspiracy (with said Hoss, not then indicted) from July 15 to August 15, 1920, to commit the offense of purchasing in the name of one Kelly from John D. Park & Sons Company, of Cincinnati, Ohio, and transporting from Cincinnati to Chicago, intoxicating liquor, 'without obtaining a permit so to do, that is to say, upon a false, forged, and fictitious permit,' and that certain of the defendants committed various overt acts in pursuance of said conspiracy, including the procurement of said alleged forged permit, the purchase of said liquor from said John D. Park & Sons Company, and the act by certain of said defendants of contributing the purchase price therefor. Said pleas further aver that said cause was tried upon said indictment and pleas of not guilty, that evidence was presented, that the jury found the defendant Groeninger guilty as charged, that judgment was entered upon said verdict, that the jury found the defendants Behrens and Vannatta not guilty, and that the conspiracy charged in the former indictment is the same conspiracy now charged.

To the said separate pleas of the three said defendants the government has demurred. This demurrer has been overruled, and the government has filed its replication or answer to said pleas, admitting substantially all the averments thereof, but denying that the prior indictment is the same offense as the offense charged in the present indictment, and averring that the present charge is a 'distinct and separate offense, element for element, in necessary allegation and proof, from the offense charged in indictment 9307.'

All parties have waived a jury upon the trial of the issue thus formed. The defendants, assuming the burden, have offered in evidence both indictments and a transcript of the evidence submitted by the government in the prior trial. The government has offered no evidence, but has rested upon the case made by the defendants. From the evidence it is apparent that the government in the present indictment is aiming at a conspiracy to buy, transport, furnish, and deliver the same liquor under consideration in the prior trial. The same purchase, the same transportation, the same defendants, and the same subject-matter then complained of in allegation and evidence are now complained of. But the government contends that the former charge was one of conspiracy to purchase and transport liquor without a permit so to do, 'that is to say, upon a false, forged, and fictitious permit,' and that the charge was thus so narrowed as not to be a bar to the prosecution of the present indictment of conspiracy unlawfully to sell, possess, deliver, purchase, and transport the same liquor for beverage purposes.

At the threshold it must be noted that the government cannot split up one conspiracy into different indictments, and prosecute all of them, but that prosecution for any part of a single crime bars any further prosecution based upon the whole or a part of the same crime. Murphy v. U.S. (C.C.A.) 285 F. 804, at page 816; In re Snow, 120 U.S. 274, 7 Sup.Ct. 556, 30 L.Ed. 658; 16 Corpus Juris, 270, and cases there cited. This proposition, followed to its logical conclusion, would seem well-nigh decisive upon the present issue.

However, the government insists that a conspiracy to purchase and transport liquor upon a false, forged, and fictitious permit is not the same conspiracy as one unlawfully to purchase, transport, possess, and sell liquor for beverage purposes. The inquiry, then, must be as to the effect of the words in the prior indictment, 'without a permit so to do, that is to say, upon a false, forged, and fictitious permit. ' If those words may be rejected as surplusage, then the first indictment becomes simply a charge of conspiracy unlawfully to purchase and transport liquor, and is clearly a part of the same conspiracy as that now charged. If they are not to be disregarded as surplusage, then the prior indictment is a charge of conspiracy so narrowed in allegation and proof as to give much plausibility to the government's contention that such a charge is separate and distinct from, and not comprehended within, one of conspiracy to purchase and transport liquor for beverage purposes.

The essence of conspiracy is the unlawful combination, and, if the object of the conspiracy is some unlawful act, the means by which such act is to be accomplished need not be set forth in the indictment. This rule is discussed at considerable length in U.S. v. Dennee, 25 Fed.Cas. 819, No. 14,948, and stated with approval in Proffitt v. U.S. (C.C.A.) 264 F. 299, at page 302, and Davey v. U.S., 208 F. 237 at page 240, 125 C.C.A. 437 (C.C.A. 7). When conspiracy is charged, the act of conspiracy is the gist of the crime, and, in order to identify the offense, it is necessary to allege and prove only certainty to a common intent. Williamson v. U.S., 207 U.S. 425, 28 Sup.Ct. 163, 52 L.Ed. 278; Jelke v. U.S., 255 F. 264, 166 C.C.A. 434; Crawford v. U.S., 212 U.S. 183, 29 Sup.Ct. 260, 53 L.Ed. 465, 15 Ann.Cas. 392; Preeman v. U.S., 244 F. 1, 156 C.C.A. 429. It was therefore unnecessary for the government to set out in detail the means by which the conspiracy charged in the prior indictment was carried out; that is, 'without a...