Wissel v. United States

• Decision Date: 14 November 1927
• Docket Number: No. 74.,74.
• Parties: WISSEL et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

22 F.2d 468 (1927)

WISSEL et al. v. UNITED STATES.

No. 74.

Circuit Court of Appeals, Second Circuit.

November 14, 1927.

Joseph F. X. Malloy, of Jersey City, N. J. (Martin Conboy, of New York City, of counsel), for plaintiff in error Ritz.

David V. Cahill, of New York City, for other plaintiffs in error.

Charles H. Tuttle, U. S. Atty., of New York City (Herman T. Stichman, Asst. U. S. Atty., of New York City, of counsel), for the United States.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

MANTON, Circuit Judge.

The plaintiffs in error were tried on an indictment containing three counts, charging a criminal conspiracy beginning November 1, 1925, and continuing until July 21, 1926. Each count was based upon the same transaction. The overt acts in all three counts were substantially the same, except that the first count contained more in number. The charge of the first count was importing unlawfully into the United States cases of liquor; the second, a conspiracy to smuggle and clandestinely introduce the same into the United States; and the third, to facilitate the concealment and transportation of the liquor with knowledge that it had been unlawfully brought into the country.

The plaintiffs in error were acquitted on the first two counts and convicted on the third. There were 19 placed on trial, the indictment was dismissed as to 2 on motion of the government, 15 were convicted, and 2 acquitted.

This liquor was purchased in Canada and other foreign countries, brought by the vessel Tilli to the Bahamas, where, in March and April, 1926, it was transshipped on the steamship Eker and unlawfully brought into the port of New York, and to a point on the North River opposite Edgewater, N. J., where it was to be transshipped to barges and boats and then forwarded by automobile and motor trucks. Three of the conspirators who pleaded guilty became witnesses for the government. They outlined the conspiracy and the parts played by the several defendants, including the plaintiffs in error. Wissel was the mayor of Edgewater; Dinan, captain of police; Flannery and Pickering, two police patrolmen; and Ritz employed in the service of the internal revenue. The evidence of the government witnesses created a jury question as to the connection of each of the plaintiffs in error with the conspiracy.

There was evidence of an agreement made with each of them, whereby in January, 1926, Dinan, Flannery, and Pickering agreed to facilitate the importation at Edgewater under the protection of Mayor Wissel in return for $2 a case; that Dinan was paid $8,500, Wissel $22,500, and Ritz, the customs inspector, $500. The witness who paid the plaintiffs in error testified to making such payments. The plaintiffs in error did not testify, but did offer character evidence in defense. These convictions would be affirmed, but for errors committed in the charge of the District Judge, which require our reversal of the judgment below.

Counsel for all the defendants on trial, as well as counsel for the government, waived the right to sum up for their respective clients. The case was thereupon submitted to the jury on the charge of the trial judge. He had not proceeded far in the charge, when he was interrupted by counsel representing the defendants, who protested against what he termed a summation for the government, and after some colloquy the trial judge gave assurance that he would confine his charge to a statement of the principles of law applicable to the evidence, and the charge proceeded. At the end thereof, exceptions were noted for failure to instruct the jury as to the importance and weight of the testimony of good character offered. The jury retired at 3:15 p. m. and returned to the courtroom at 7:55 p. m. announcing that it was deadlocked, and asked for further instructions, but not particularizing as to what they wished to be instructed upon. Whereupon the court said:

"I know of nothing further to say to you about the case, unless you would indicate something to direct my attention to some particular point in it, except this: This is a very simple and a very important case. It is important for the government, and it is equally important for each of these defendants. You have heard the evidence in the case, and you recollect more or less the evidence that was brought out at the trial. It is your duty, if you can do so in good conscience, to settle the case one way or the other. It is your duty to the government, and it is your duty to these defendants. The case is of such importance as requires a settlement by a verdict of the jury. It is your duty to deliberate with a verdict in view, and while I, personally, would like to do everything I possibly can for your convenience and comfort, I feel the case is of such importance that it will be necessary to keep you together until you can have agreed, or until you do agree upon a verdict. You may retire, gentlemen, and return your verdict."

While exception was taken to this instruction, it was without merit, for no complaint can be made to the fair and accurate statement of the jury's duty. Before retiring, the jury, following a request of counsel, were further instructed:

"Each juror is entitled to his own conscientious conviction about the case, and each juror is to follow that conviction, not arbitrarily or just because he has the power to do so, but with an open mind and clear conscience, listening to the reasons advanced for or against conviction, and acting, in the final analysis, as a juror would act with regard to any matter of importance that might come up for him to pass upon."

The jury retired at 8 p. m. and again returned at 9:58 p. m., requesting that the bill of indictment be sent in for their consideration. This was declined, but the court explained the substance of the charges of the indictment. Although the court in that part of the charge heretofore quoted had fully charged as to the duty and function of the jury, he thereupon said:

"A jury may arbitrarily set at defiance law and reason, and refuse...