255 F. 264 | 7th Cir. | 1918
Lead Opinion
(after stating the facts as above). Is the indictment sufficient?
Plaintiffs in error appropriately and timely raised this question, and now claim that the “allegations set forth in the indictment do not constitute- a conspiracy to defraud the United States.” The indictment is assailed:
(B) Because of the defects in the allegations wherein it is sought to describe acts which are therein alleged to have been done to effect the object of the conspiracy.
(B) The sufficiency of the indictment is also attacked because: (a) No act therein alleged to be “an act done to effect the object of the conspiracy” is shown to be such an act within the rule laid down in Hyde v. United States, 225 U. S. 347, 32 Sup. Ct. 793, 56 L. Ed. 1114, Ann, Cas. 1914A, 614. (k) Because it does not appear that any one of such overt acts was done after the conspiracy was formed, (c) Because the overt acts alleged to have been committed in furtherance of such conspiracy were not sufficiently described or particularized, in that they failed to identify the particular places or buildings in or at which the white oleomargarine and the coloring matter were delivered.
The rule by which the sufficiency of this indictment must be measured is well set forth in Harper v. United States, 170 Fed. 385, 392, 95 C. C. A. 555, 562:
“The rules governing criminal pleadings have become less technical and more practical, but no less protective to the accused, since the Supreme Court in a series of cases beginning in the year 1893, notably Dealy v. United States, 152 U. S. 539 [14 Sup. Ct. 680, 38 L. Ed. 545]; Evans v. United States, 153 U. S. 584 [14 Sup. Ct. 934, 38 L. Ed. 830]; Dunbar v. United States, 156 U. S. 185 [15 Sup. Ct. 325, 39 L. Ed. 390]; Cochran & Sayre v. United Stats, 157 U. S. 286 [15 Sup. Ct. 628, 39 L. Ed. 704]; and Rosen v. United States, 161 U. S. 29 [16 Sup. Ct. 434, 480, 40 L. Ed. 606] — has under various circumstances declared that allegations in an indictment are sufficient if their meaning is ‘clear to the common understanding’; that, ‘no impracticable standards of particularity should be set up’; that ‘few indictments under the national banking law are so skillfully drawn as to be beyond the hypercriticism of astute counsel’; and that ‘the entire indictment is to be considered in determining whether the offense is fairly stated.’ The liberal tendency of the doctrine so announced has been followed by this court in Clement v. United States, 149 Fed. 305 [79 C. C. A. 243], Rinker v. United States, 151 Fed. 755 [81 C. C. A. 379], Stearns v. United States, 152 Fed. 900 [82 C. C. A. 48], and Morris v. United States, 161 Fed. 672 [88 C. C. A. 532].” ,
Section 37 of the Criminal Code, formerly section 5440, R. S., and now section 10201, U. S. Comp. St. 1916, reads as follows':
“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any*275 purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned not more than two years, or both.”
The sufficiency of the allegations appearing in indictments attempting to charge a violation of this section has been challenged in the federal courts in so many cases that it is unnecessary to search elsewhere for precedents. The following leading cases throw much light upon the questions here under consideration, and an examination of them leads to the deduction of several general rules that go far toward solving the objections made by the plaintiffs in error: See United States v. Moore (C. C.) 173 Fed. 122; Williamson v. United States, 207 U. S. 425, 28 Sup. Ct. 163, 52 L. Ed. 278; Dealy v. United States, 152 U. S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545; United States v. Keitel, 211 U. S. 370, 29 Sup. Ct. 123, 53 L. Ed. 230; United States v. Rabinowich, 238 U. S. 78, 35 Sup. Ct. 682, 59 L. Ed. 1211; United States v. Hirsch, 100 U. S. 33, 25 L. Ed. 539; Curley v. United States, 130 Fed. 1, 64 C. C. A. 369; United States v. Gooding, 12 Wheat. 460, 6 L. Ed. 693; Rosen v. United States, 161 U. S. 29, 16 Sup. Ct. 434, 480, 40 L. Ed. 606; Pettibone v. United States, 148 U. S. 198, 13 Sup. Ct. 542, 37 L. Ed. 419; Perrin v. United States, 169 Fed. 17, 94 C. C. A. 385; Dunbar v. United States, 156 U S. 195, 15 Sup. Ct. 325. 39 L. Ed. 390; United States v. Carll, 105 U. S. 611. 26 L. Ed. 1135; United States v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516; United States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; United States v. Munday (C. CO 186 Fed. 375; United States v. Munday, 222 U. S. 175, 32 Sup. Ct. 53, 56 L. Ed. 149.
The general conclusions deducibffi from these cases are: (a) The conspiracy statute creates and defines an independent crime, and an offense against the statute is committed when “two or more persons conspiro” either (a) “to commit any offense against the United States,” or (b) “to defraud the United States in any manner or for any purpose” etc., and (c) an overt act by one of the conspirators follows.
A wide difference between opposing counsel over two propositions explains much of the variance in their contentions.
(a) The government contends that paragraphs 6-20 of the indictment set forth the means by which the conspiracy described in paragraph 5 was to be effected, while plaintiffs in error contend these sections contain a more specific and detailed statement of the conspiracy, and therefore control and limit the general charge of conspiracy found in section 5.
(b) Plaintiffs in error attack the sufficiency of the allegations in paragraphs 6-20, even if the court should conclude that they are but a statement of the means which the plaintiffs in error adopted to carry their conspiracy into effect, and base their attack upon the omissions heretofore pointed out. The government, on the other hand, contends that these “means” (paragraphs 6-20), were not necessary allegations, but were inserted to more fully apprise the plaintiffs in error of the character of the charge preferred against them.
Construing the whole indictment, we are of the opinion that such' allegations as appear in paragraphs 6-20 set forth the means by which the general conspiracy was to be effected.
We cannot escape the conclusion that the fair intendment of the pleading was to set forth the conspiracy in paragraph 5, the means by which it was to be carried out appearing in paragraphs 6-20. The overt acts in furtherance thereof (21 in number) appear in paragraphs 21-41.
The second question is determined by conclusion (c) heretofore set forth.
While counsel for plaintiffs in error strenuously contend that this rule no longer prevails in the federal courts, we are convinced that the great weight of authority supports it.
In United States v. Dennee, Fed. Cas. No. 14,948, Judge Woods, in overruling an indictment, used this language:
“A somewhat careful consideration of tlie authorities convinces me that the better reason is with those who deny the necessity of setting out the means by which the conspiracy was to be carried into effect. But it seems clear that the statute upon which this indictment is based was intended to relieve the pleader from any supposed necessity of setting out the means agreed upon to carry out the conspiracy, by requiring him to aver some act done in furtherance of the conspiracy, and making. such act a necessary ingredient of the offense. In the case of Com. v. Shedd, 7 Cush. [Mass.] 514, the court said, that ‘the great difficulty in giving effect to the allegation of overt acts in an indictment for conspiracy on a motion in arrest of judgment for insufficiency of the indictment, is this, that overt acts are merely alleged by way of aggravation of the offense, and though alleged, they need not be proved, and the alleged conspiracy might be found by the jury without proof of the precise overt acts charged to have been done in pursuance of the conspiracy.’ That difficulty does not exist here, for the overt act is a part of the offense, and must be proved, as laid in the indictment. The reason given in the case just quoted from, why the averment of overt acts cannot have effect in the indictment for conspiracy, does not apply. In my opinion, therefore, this indictment which avers the conspiracy, and tiren sets out the overt act done to carry it into effect, is sufficient, and it is not necessary to aver the means agreed on to effect the conspiracy. The averment of acts done to effect the*277 -object of tho conspiracy, and which must be proven to sustain the indictment, is more than the -equivalent of an averment of means agreed on to carry it into effect. This objection to the indictment is not well taken.”
In United States v. Goldman, Fed. Cas. No. 15,225, this language appears:
“1. With respect to the statements of the charge in an indictment for conspiracy, it may be observed that though it is usual to state the conspiracy, and then show that in pursuance of it certain overt acts were done, it is sufficient to state the conspiracy alono. Ajnd it is not necessary to state the means by which the object was to be effected, as the conspiracy may be complete before tho moans to he used are taken into consideration. * * * ”
In Bannon and Mulkey v. United States, 156 U. S. 468, 15 Sup. Ct. 469, 39 L. Ed. 494, the rule is thus announced:
“At common law it was neither necessary to aver nor prove an overt act in furtherance of the conspiracy, and indictments therefor were of such general description that it was customary to require the prosecutor to furnish the defendant with a particular of his charges. Rex v. Gill, 2 B. & Ald. 204; Rex v. Hamilton, 7 Carr. & P. 448; United States v. Walsh, 5 Dillon, 58 [Fed. Cas. No. 16,636]. But this general form of indictment has not met with the approval of tho courts in this country, and in most of the states an overt act must be alleged. The statute in question changes the common law only in requiring an overt act to be alleged and proved.”
In Perrin v. United States, 169 Fed. 17, 21, 94 C. C. A. 385, 389, the rule is stated in the following language:
“The unlawful combination is sufficiently charged in the indictment in the allegation that the defendants conspired together ‘to defraud the United States of the title and possession of large tracts of land’ described in the indictment. It is not necessary to aver the means employed to carry the unlawful combination into effect. * ® * Having averred the use of such means as would clearly apprise the defendant of the offense of which he is charged, we think the allegations are sufficient.”
See 5 Ruling Case Faw, p. 1080.
Mr. Justice Cooley, speaking for the Michigan Supreme Court, in the case of People v. Arnold, 46 Mich. 268, 9 N. W. 406, announced the rule in the following language, citing many cases:
“It is conceded that if the act which the conspirators combine to perform is unlawful, it is not necessary to set out in the information the means intended to be employed in accomplishing it. * * * But if tho end in view
is lawful or indifferent and the conspiracy only becomes criminal by reason «of the unlawful means whereby it is to be accomplished, it becomes necessary to show the criminality by setting out the unlawful means.”
See, also, United States v. Dustin, 25 Fed. Cas. No. 15,011; United States v. Benson, 70 Fed, 591, 17 C. C. A. 293; United States v. Gordon (D. C.) 22 Fed. 250. For collection of state cases, see Péople v. Arnold, supra.
We have not overlooked the contention of counsel for plaintiffs in error that this rule is contrary to the holding of the Supreme Court, as announced in United States v. Cruikshank, 92 U. S. 542, 557-559, 23 L. Ed. 588, and Evans v. United States, 153 U. S. 584, 14 Sup. Ct. 934, 38 L. Ed. 830; but we are not persuaded that a different rule of pleading in the Federal courts was there announced.
The case of Evans v. United States, supra, is not out of harmony with the conclusion here reached. Quoting from Wharton’s Criminal Eaw, the court there says:
“ ‘Tiie means of effecting the criminal intent,’ says Mr. Wharton, ‘or the circumstances evincive of the design with which the act was done, are considered to be matters of evidence to go to the jury to demonstrate the intent, and not necessary to be incorporated in an indictment.’ ”
Having disposed of the general objections that underlie the specific criticisms heretofore set forth, we deem it unnecessary to discuss all of the various questions raised at length.
(A, a) It was not necessary to charge in the indictment that the defendants were manufacturers of oleomargarine. Williamson v. United States, 207 U. S. 425, 28 Sup. Ct. 163, 52 L. Ed. 278; United States v. Keitel, 211 U. S. 370, 29 Sup. Ct. 123, 53 L. Ed. 230. Moreover the fair and legitimate inference from the entire indictment is that the plaintiffs in error were manufacturers of oleomargarine within the definition of the Act. See sections 7, 13, 15, 17, 19.
(A, b) The criticism that the indictment was insufficient because the individuals named or unnamed were not capable of defrauding the United States out of the tax, must likewise be rejected. The crime of conspiracy may be fully committed without the name of a single person who was to color the oleomargarine without paying a tax thereon, being agreed upon. United States v. Holte, 236 U. S. 140, 144, 35 Sup. Ct. 271, 59 L. Ed. 504, L. R. A. 1915D, 281; United States v. Rabinowich, 238 U. S. 78, 35 Sup. Ct. 682, 59 L. Ed. 1211; Williamson v. United States, 207 U. S. 425, 28 Sup. Ct. 163, 52 L. Ed. 278.
(A, c) The criticism under this heading is refuted by an examination of the indictment. In determining the sufficiency of the allegations in an indictment, the court cannot look at one paragraph alone, but each must be read in the light of its associate paragraphs.
(A, d) This criticism is met by the case of Dealy v. United States, 152 U. S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545, where the court says:
“In other words, if certain facts make out the crime, it is sufficient to charge those facts, and it is obviously unnecessary to state that which is not essential. Can it be doubted that if these defendants entered into a conspiracy to defraud the United States of public lands, subject to homestead entry, at the given office in the named county, the crime of conspiracy was complete even if no particular tract or tracts were selected by the conspirators? It is enough that their purpose and their conspiracy had in view the acquiring of some of those lands, and it is not essential to the crime that in the minds of the'conspirators the precise lands had already been identified.”
(A, f) Eor similar use of the verbs “to cause” and “to furnish,” see United States v. Rabinowich, 238 U. S. 88, 35 Sup. Ct. 682, 59 L. Ed. 1211; United States v. Keitel, 211 U. S. 370, 390, 29 Sup. Ct. 123, 53 L. Ed. 230; section 4746, R. S. (Comp. St. § 9079).
We are convinced that the indictment, giving to all of the words their fair meaning in view of the entire context, thoroughly and with reasonable definiteness apprised the plaintiffs in error of the offense with which they were charged, as well as the means by which, and the places and the time where, the object of the conspiracy was to be consummated.
“The first of these [objections] is that the plaintiff does not, negative the matter of the exception created by the proviso to section 6 of the Act of March 2, 1893, as amended by the Act of April 1, 1898, which gives the right of action for the penalty. This objection must fail, because it is opposed to the settled rule that an exception created by a proviso or other distinct or substantive clause, whether in the same section or elsewhere, is defensive, and need not ho negatived by one suing under the general clause.”
See, also, Ledbetter v. United States, 170 U. S. 606, 18 Sup. Ct. 774, 42 L. Ed. 1162; Schlemmer v. Buffalo, etc., Co., 205 U. S. 1, 27 Sup. Ct. 407, 51 L. Ed. 681; Smith v. United States, 157 Fed. 721, 85 C. C. A. 353; s. c., 208 U. S. 618, 28 Sup. Ct. 569, 52 L. Ed. 647; Joplin Mercantile Co. v. United States, 213 Fed. 926, p. 933, 131 C. C. A. 160, Ann. Cas. 1916C, 470; s. c., 236 U. S. 531, 35 Sup. Ct. 291, 59 L. Ed. 705; United States v. Cook, 17 Wall. 168, 21 L. Ed. 538.
Indictments charging violation of the Oleomargarine Act but which did not negative any of the exceptions found in the act have been sustained. Enders v. United States, 187 Fed. 754, 109 C. C. A. 502; Hardesty v. United States, 168 Fed. 25, 93 C. C. A. 417; May v. United States, 199 Fed. 42, 117 C. C. A. 420.
B. The various criticisms of the indictment appearing under this head will be considered together. Much of the argument in support of these objections is based upon the erroneous contention that paragraphs 6-20 set forth the conspiracy, and not the means by which the conspiracy was to be accomplished. We have been unable to accept the contention of the plaintiffs in error in this respect, and likewise reject the objections now made pertaining to the overt act. In United States v. Rabinowich, supra, the court said:
“There must he an overt act; but this need not be of itself a criminal act; still less need it constitute the very crime that is the object of the conspiracy.”
“That in pursuance of the said conspiracy and in order to effect the object of the same, the said defendants,” etc.
This language answers the contention that the indictment is bad because it does not appear that the overt acts followed the forming of the conspiracy.
We conclude that the indictment describes acts by one or more of the parties to tire conspiracy to effect the object of the cofispiracy within the definition of the Conspiracy Act. See Houston v. United States, 217 Fed. 854, 133 C. C. A. 562; Witte v. Shelton, 240 Fed. 265, 273, 153 C. C. A. 191.
Plaintiffs in error, and each of them, strenuously insist that the court erred in refusing to take the case from the jury: (1) Because the evidence failed to establish the alleged conspiracy. (2) Because there was no proof that any of the plaintiffs in error committed any one of the overt acts charged in paragraphs 21 — 40.
In conspiracy cases, the proof must, from the very nature of the charge, consist largely of circumstantial evidence. Rarely can the government find documentary proof of any unlawful combination to defraud it or to violate its laws. The test of the sufficiency of the evidence to support a conviction under this section has not infrequently been set forth. See Marrash v. United States, 168 Fed. 226, 229, 93 C. C. A. 511; Alkon v. United States, 163 Fed. 811, 812, 90 C. C. A. 116; Wharton’s Criminal Daw (10th Ed.) § 1401; 2 Bishop’s New Criminal Law, § 227; United States v. Hamilton, Fed. Cas. No. 15,-288; United States v. Lancaster (C. C.) 44 Fed. 896, 10 L. R. A. 333.
In the present case the question whether the proof is sufficient to sustain a conviction is one that has required careful study. Many violations of the oleomargarine law are clearly shown. Participation in these violations by salesmen of the Jelke Company, including the plaintiffs in error, is likewise clearly established, but the proof of the unlawful combination — the conspiracy charged — rests solely upon the deduction and inferences from facts established on the trial.
After examining all of the testimony carefully from the standpoint of each of the plaintiffs in error, we are convinced that there was evidence sufficient to support the conviction. The claims of the government, set forth in the statement of facts, find support in the evidence.
Single isolated instances tending to establish the conspiracy charged are explainable upon the theory of each of the plaintiff’s innocence, but all of the evidence leads the mind logically to the conclusion that the plaintiffs in error, prompted by a desire to profit through increased sales of oleomargarine, conspired to accomplish their purpose by a violation of the Oleomargarine Act. The extent of the operations, and the similarity with which the illegal practices were conducted, invites the belief and justifies the conclusion that it was the result of a premeditated plan. Because of the common interest and continued participation in various illegal acts by the same parties, the plaintiffs in
Nor should it be conceded that all of the individual acts standing alone were perfectly consistent with the innocence of the plaintiffs in error. Some of these isolated facts are so suggestive of criminality and consistent with the charge of the indictment as to shake, if not to entirely remove, the presumption of innocence upon which the plaintiffs in error throughout the trial so persistently rested. To' illustrate : It appears that one of the plaintiffs in error sought out a butler and egg retailer and gave him the name of a baker, that he might use and advised him to purchase white oleomargarine in this baker’s name from the John F. Jelke Company. In a single year the Jelke Company sold this “moonshiner” under a fictitious baker’s name 183,576 pounds of white oleomargarine.
Bakers were excepted from certain provisions of the law (see section 16), and in order to get the advantage of these exceptions and to prevent the government from detecting the “moonshiner’s” business, the various plaintiffs in error advised retailers to make cash purchases of white oleomargarine from the Jelke factory in the name oí a nearby baker. In six months the names of 12 bakers appeared on the books of the company as having purchased 34,034 pounds of white oleomargarine. Upon the trial it was proven that 11 of these bakers had not purchased a pound of white oleomargarine during that period, while one had purchased 72 pounds.
Another “moonshiner” was advised to purchase in the name of Heins and to give his street number as 5102 Elizabeth street. The Jelke Company books showed that Mr. Heins purchased on January 7, 1908, 7,500 pounds of white oleomargarine, the street number being 5102 Elizabeth street. Upon the trial it appeared that Heins was a fictitious person and that at 5102 Elizabeth street there was a little cottage occupied by a widow, Mrs. Schmidt.
These were but a few of the many instances of fraud that were practiced upon the government. Nor does the record fail to connect the plaintiffs in error with these transactions. Frequently not one, but two or three of them, on various occasions, participated in the “moon-shining” business, and invariably, according to the testimony, the “moonshiner’s” entry into the illegal business was brought about through persuasion by one or more of the plaintiffs in error.
This is not a case where an uncorroborated statement of an accomplice stands contradicted by the sworn testimony of the defendant. It is a case where the testimony of many alleged accomplices, corroborated by other evidence, stands undisputed by the statement of any one of the plaintiffs in error. Notwithstanding the jury was required to find the conspiracy from deductions and inferences drawn from undisputed facts, we are convinced that the record justifies the ruling of the coúrt in denying the motion of the plaintiffs in error to direct a verdict in their favor, based on insufficiency of the evidence.
Plaintiffs in error further contend that the proof fails to connect auv one of them with the overt acts charged in the indictment. It is claimed that the deliveries of white oleomargarine specified in the in
Motion to Elect. — At the close of the trial each of the defendants moved the court to compel the government to elect “to proceed to the jury on only one of the several conspiracies joined in the indictment.” The court’s refusal to grant the motion is assigned as error. This motion i's based upon the position of the plaintiffs in error, heretofore considered, that the indictment charged a conspiracy to conspire followed by numerous charges of conspiracy entered into between the plaintiffs in error and each of the “divers individuals” named and unnamed and therein referred to. We are unable to accept this contention. The indictment charged but one conspiracy, and that appeared in paragraph 5. There being but one charge of conspiracy, the court properly denied the motion of plaintiffs in error.
The trial judge covered the substance of much of these requested instructions, and clearly and succinctly and with reasonable elaboration presented the issues which were involved in this trial.
Only a few of the criticisms will be separately considered, although we have endeavored, in view of the importance of this case, to carefully consider each and every assignment of error and all the contentions in respect thereto. We are not justified in setting forth the entire pharge of the court to the jury, because of its length, although it would be but fair to the learned trial judge that this be done.
“ii is the position of the defendants that many of these witnesses were fellow wrongdoers with the defendants; that they helped to commit a crime and that, therefore, their testimony should be rejected in this ease.”
Plaintiffs’ particular attack is directed to the words printed in italics. We agree with counsel for plaintiffs in error that this language was unfortunate, and, standing alone, misstated the defendants’ position. It was not the defendants’ position that they were wrongdoers, noi did they admit that they were fellow wrongdoers with any of the government witnesses.
“I shall also at tills time refer to the situation of many of the witnesses. They have been referred to by counsel in arguments both to the court and to you as ‘accomplices.’
“It is the position of the defendants that many of these witnesses were fellow wrongdoers with the defendants, that they helped to commit a crime, and that, therefore, their testimony should be rejected in this case.
“It is the law that the uncorroborated testimony of an accomplice is subject to rejection, and when, therefore, in a case it appears to you that the witness in testifying discloses the fact he is an accomplice, you are not at liberty at the outset to reject his testimony, but it simply advances to you to inquire respecting the question of whether his testimony stands alone, whether Hiere is proof in the case which corroborates him in respect to what he testifies to; and if you find there is proof acceptable to you, which is corroborated, then you are not at liberty to reject his testimony solely because he was an accomplice, but you are required then to proceed with an analysis of his testimony as you proceed with the analysis of the testimony of other witnesses respecting whom that infirmity does not exist.”
The following further reference to the testimony of an accomplice was made by the court:
“If you find any witness has deliberately sworn falsely as to any material matter in the case, you are at liberty to reject the whole of his testimony, unless you find it is corroborated by other credible evidence.”
We cannot believe that any of the defendants were prejudiced by the criticized portions of the charge when read in the light of all tho instructions quoted. The impression which the court conveyed to the jury by this language was unfavorable to those witnesses who testified for the government, and who were referred to as “accomplices.” The court intended by this language to warn the jury against conviction upon the testimony of accomplices. It was a further elaboration of his charge previously made bearing upon the weakness of testimony given by co-conspirators.
Plaintiffs in error complain because of the court’s definition of the words “reasonable doubt,” and because of the language used by the court in reference to the burden of proof. They further complain because the court ignored the rule which makes the presumption of innocence, evidence upon which a reasonable doubt may be based. The first paragraph of the charge clearly made the presumption of innocence in favor of each one of the defendants a fact in evidence which the jury was required to consider and weigh on each and every one of the issues presented. The language used in defining reasonable doubt is supported by many authorities and is in harmony with the language usually used on similar occasions.
The criticism directed to the court’s definition of an overt act is answered by the case of Witte v. Shelton, supra.
“While the fact is for you to find, gentlemen, I express to you the opinion,, you need not accept it if you do not care to, and if your judgment leads you to the contrary you may reject it; but I express to you the opinion that, aside from the alleged disclosures made by these defendants, there is corroborative evidence in the case.”
> This was not error. Simmons v. United States, 142 U. S. 148, 155, 12 Sup. Ct. 171, 35 L. Ed. 968; Vicksburg & Railroad Co. v. Putnam, 118 U. S. 545, 7 Sup. Ct. 1, 30 L. Ed. 257; United States v. Philadelphia & Reading R. R., 123 U. S. 113, 8 Sup. Ct. 77, 31 L. Ed. 138.
In fact, upon all of the evidence in this case it would not have been error for the court to charge the jury as a matter of law that there was corroborative evidence supporting the alleged declarations of the plaintiffs in error.
The government contends that no proper exception was taken by plaintiffs in error to present the various questions raised by the court’s-charge to the jury, or its failure to charge as requested, and reliance is pla'ced upon the case of Allis v. United States, 155 U. S. 117, 15 Sup. Ct. 36, 39 L. Ed. 91. We have chosen, however, to examine the charge fully, as well as the requested instructions, to determine whether the trial judge held the scales of justice in even balance, saying all that was necessary to guard the rights of the accused. We find no-reversible error.
In this respect the trial judge possessed much discretion as to the period of time during which he would allow the government to produce testimony showing, or tending to show, the motive for the conspiracy, as well as the intent with which the acts were committed. Heike v. United States, 227 U. S. 131, 33 Sup. Ct. 226, 57 L. Ed. 450, Ann. Cas. 1914C, 128.
. The history of this industry, as well as the laws affecting it, were receivable in evidence, in order that the jury might better understand the claims of the respective parties.
But it is contended that numerous specific acts of fraudulent transactions prior to July 1, 1902, were received in evidence for no other purpose than to prejudice the jury against the plaintiffs in error. If the purpose and the sole purport of this testimony was merely to show the defendants were willing to violate the laws of the land, it was, of course, erroneously admitted. On the other hand, this evidence was admissible if the acts described were closely connected with and involved in the object of the conspiracy, and were quite similar to the subsequent acts of the conspirators, of which the government complains.
Prior to July 1, 1902, there was an oleomargarine act in force. Although the tax on colored oleomargarine was increased under the latter act, and the incentive to violate the law through illegal marketing of their product was greater, it was nevertheless the same motive-
The conspiracy was not established by any written documentary proof, but was deducible from the facts and circumstances heretofore related. Many of these acts of themselves were innocent and harmless. Whether these various acts tended to establish the unlawful conspiracy, or were mere innocent acts of the defendants, depended upon the intent and purpose with which they were committed. As throwing light upon this question of intent, the court rightly permitted the government a wide range. Whether innocently committed or performed with criminal intent to accomplish the ends of the conspiracy might well be established by proof of acts of a similar character practiced by the same parties even though they occurred prior to 1902. To illustrate: The government claims that prior to 1902 the defendants caused tubs to be made with an extra hoop, upon which revenue stamps were placed; that the retailer immediately removed the extra hoop without canceling the stamps; that such practice on the part of retailers was approved by, and in fact suggested by, defendants. It was in reference to this testimony, showing the use of this extra hoop prior to 1902, that most of the complaint of the plaintiffs in error under this heading is made.
Obviously, the use of a tub with three hoops is not of itself an act that would invite suspicion or point to guilt on the part of the defendants. But if it appeared that one of the hoops was an extra hoop, used for no other purpose than to carry the revenue stamps, and was in fact placed on the tub for the purpose of assisting the retailer in avoiding the revenue law, its presence was no longer consistent with the theory of innocence. After 1902, similar means (see subdivision 5 of statement of means in statement of facts) were adopted, which of themselves were perfectly innocent. The protection of revenue stamps upon the tubs containing colored oleomargarine may have been practiced with no criminal intent, but if they were placed there so as to permit the “moonshiners” to fill and refill the same tubs, and to prevent detection in case a government inspector appeared, a different deduction followed. The practice of providing the extra removable hoop to carry the revenue stamp, that the retailer might avoid the provisions of the revenue act prior to 1902, is so similar in character to the practice of providing the revenue stamp with a protection that would permit the retailer to violate a similar law (followed after the act of 1902) as to justify the admission in evidence of the former practice in order to throw light upon the intention of the same parties under the later practice.
The rule applicable is well laid down in Wood v. United States, 16 Pet. 358, 10 L. Ed. 987:
“ * * « where the intent of the party is matter in issue, it has always been deemed allowable, as well in criminal as in civil cases, to introduce evidence of other acts and doings of the party, of a kindred character, in order to illustrate or establish his intent or motive in the particular act directly in judgment. Indeed, in no other way would it be practicable, in many cases, to establish such intent or motive, for the single act, taken by itself, may not be decisive either way; but when taken in connection with others of like eharac*286 ter and nature, the Intent and motive may be demonstrated almost with a conclusive certainty.”
See, also, Wharton on Criminal Evidence (10th Ed.) p. 145; Williamson v. United States, 207 U. S. 451, 28 Sup. Ct. 163, 52 L. Ed. 278; Van Gesner v. United States, 153 Fed. 55, 82 C. C. A. 180; Chitwood v. United States, 153 Fed. 553, 82 C. C. A. 505, 11 Ann. Cas. 804; Exchange Bank v. Moses, 149 Fed. 340, 342, 79 C. C. A. 278; Thiede v. Utah, 159 U. S. 510, 16 Sup. Ct. 62, 40 L. Ed. 237; Clune v. United States, 159 U. S. 592, 16 Sup. Ct. 125, 40 L. Ed. 269; Heike v. United States, 227 U. S. 145, 33 Sup. Ct. 226, 57 L. Ed. 450, Ann. Cas. 1914C, 128.
It appeared that the amount of colored oleomargarine sold to the “moonshiners” was inconsiderable as compared to the amount of uncolored oleomargarine thus sold. The profit upon a pound was the same to the Jelke companies, whether the oleomargarine was colored or uncolored. Plaintiffs in error asserted that under the federal law they were strictly within their rights in selling either colored or uncolored oleomargarine provided the government tax was paid on each sale. In other words, they claimed that this “means” was perfectly consistent with innocence on their part. The government, on the other hand, contended that the sale of colored oleomargarine under certain circumstances shown in the case, while of itself lawful under the federal law, was nevertheless not made by the plaintiffs in error innocently, but was merely one of the “means” used in connection with many others by' which plaintiffs in error assisted “moonshiners” in avoiding prosecution. It was for the purpose of throwing light upon the intent of the plaintiffs in error in causing these sales of colored oleomargarine to be made, and for no other purpose, that the existence of the Illinois statute became relevant.
It is quite apparent that the manufacturers, without any greater profit accruing from the sale of colored oleomargarine than was obtainable from selling a like quantity of uncolored oleomargarine, would not have risked the possibility of arrest and conviction for violation of the state law, unless they hoped to increase their total sales by helping the “moonshiners” develop the illegal business. It was by reason of the concurrence of several acts, heretofore termed “means,” that the intent of the plaintiffs in error in selling “moonshiners” colored oleomargarine became important.
This deduction is strengthened when the record is examined to ascertain the actual amount of colored oleomargarine' thus sold to the recognized or professional “moonshiners.” The salps of colored product were so small (and the profits necessarily so limited) that one questions the sincerity of the assertion that plaintiffs in error were in
We conclude that, under the circumstances disclosed in this case, the Illinois statute was relevant on the question of intent of the plaintiffs in error in selling colored oleomargarine to certain “moonshiners.” See cases cited under last heading.
Nor can we agree with the statement of counsel for plaintiffs in error that the state law was in direct conflict with the federal law. The positions of the state and federal governments were somewhat analogous to the positions of the United States government and some states on the liquor traffic. The imposition of a federal tax upon retail liquor dealers is not inconsistent with the act of any state or community which prohibits the sale of liquor.
In the present case it appeared that the state of Illinois prohibited the manufacture and sale of colored oleomargarine, but did not prohibit the manufacture and sale of uncolored oleomargarine. The federal law imposed a tax (almost, but not quite, prohibitive) upon colored oleomargarine, while the tax upon uncolored oleomargarine was nominal. It is obvious that the two laws were not repugnant to each other.
That the position of the government was understood by the court and jury is shown by the following statement of the counsel for the government made on trial:
“It is their [defendants’] intention which is the subject ox examination, because your honor will charge the jury if all these things were done innocently — in the ordinary and usual course of business of these defendants, they cannot bring in a verdict of guilty. They can base and predicate a verdict of guilty only upon a finding that those various acts [means] were done with a criminal intent.”
Again, it is doubtful if the mere reception in evidence of the Illinois statute under any circumstances constituted reversible error. The trial occurred in Illinois. The court and jury were presumed to know the law, and were required to take judicial notice of this statute.
Nor does the record show that all of the Illinois statutes complained of were read to the jury by the government’s attorney. At least a portion of the law, not hearing on any portion read by the government’s attorney, was read to the jury by the defendant’s attorneys.
The trial judge is in the best position to determine how far the cross-examination should proceed, and, when- convinced that the facts are all presented and fairly before the jury, the examination of a witness, either on direct or cross examination, should cease.
“The Court: Now, these two witnesses Salvo and Paule — of course, I am not particularly interested in what testimony goes in, what its quality is; but if the government claims that these two witnesses have definitely committed themselves before the grand jury to conversations that they now happen not to recall, in my judgment their attention should be called definitely in some way to those conversations. They appear to he rather conveniently forgetful.
“Mr. Wilkerson: We ought to have a chance to straighten out their testimony, because we will have to deal with them on the theory that they testified falsely here, if they do not; that is all.
“The Court: I feel that is why I wanted these witnesses to state — if the government has the record of the grand jury and claim those men did definitely commit themselves to conversations, which, according to the ordinary course of human events a man would not forget so readily. I think the attention of the witnesses should be called to that testimony.
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“The Court: X don’t mean in open court. I mean take a number of these witnesses into the District Attorney’s office — I don’t care whether it is in your presence or not — and read that to them and then recall them to the stand and ask them whether, since the testimony has been called to their attention, they still adhere to what has been said on the stand.
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“The Court: I don’t like a witness to leave the stand under the condition these witnesses did.”
The testimony given by these witnesses before the grand jury was thereafter read to them, and the witnesses were recalled, and conversations which they had previously stated they had forgotten were then related.
Is this error? We think not. When a witness upon the trial of any case, whether criminal or civil, convinces the court that he is “convenientfy forgetful,” the trial judge is amply justified in taking matters into his own hands, and on his own motion taking such steps as will lead to the ascertainment of the truth.
It is true that trials in criminal cases should be so conducted as to
In the present case, in respect to the matter under consideration, the action of the trial court is to be commended rather than criticized.
Many other objections to the ruling of the court in admitting evidence appear in the briefs of plaintiffs in error. They need not be separately considered. Some are, for want of proper objections, not properly before us. Others must be overruled because plaintiffs in error misconstrue the court’s ruling. Still others pertain to testimony that had no bearing upon the outcome of the case.
We fail to discover reversible error in the admission of evidence over the timely and proper objections of plaintiffs in error.
The case has been fully and we believe fairly tried. We find no reversible error.
Judgment is affirmed.
Dissenting Opinion
(dissenting). Proof of earlier similar acts is admissible for the purpose of establishing the motive, design, or intent which accompanied the later and alleged criminal transactions. That such evidence may he prejudicial to a defendant by establishing that he committed other crimes does not make it inadmissible; it compels, however, the exercise of caution on the part of the court in receiving it, and in instructing the jury as to its proper scope, ^and on counsel in using it in argument.
In this case, such proof would be admissible to show that the later acts, susceptible of an innocent or criminal interpretation, were done with criminal intent; specifically, in furtherance of a conspiracy to defraud the government out of the ten cents per pound tax levied on the sale of colored oleomargarine.
Motive, however, is in no maimer involved; if defendants, with criminal intent, did what they are charged with having done, the motive, money making, was apparent from the transactions themselves. That they had a like motive in earlier criminal transactions is immaterial; proof, therefore, of such other dealings, merely to show a readiness to violate the law of the land in order to increase their business and the profits thereof, is inadmissible. Its only tendency is to prejudice the jury.
The Illinois statute forbidding the sale of colored oleomargarine had no bearing whatever on the innocence or guilt of defendants or on their motive, design, or intent in committing the acts charged against them. The evidence is clear that defendants, like all other oleomargarine manufacturers, sold very much more white than colored goods, both before and after the federal act of 1902 had imposed a heavy tax on the sale of colored oleomargarine. Every such
The only inference to be drawn therefrom bearing on the present charge is that, as defendants were ready to violate Illinois law in order to make money, they were also ready to conspire to commit a federal crime for the same purpose. As well might proof of the law for-' bidding larcenies and embezzlements and of the violation thereof be admitted; the inference would be equally cogent.
While the federal court takes judicial notice of state statutes, and while, of course, proof of the sale of colored goods after 1902, as part of the present case, is admissible, even though it necessarily shows a violation of Illinois law, the introduction of the statute itself and the proof of its violation prior to 1902 was, in my judgment, without justification. Whatever the purpose of the government’s counsel, the necessary effect of this serious error was to prejudice the jury; an effect greatly enhanced by the use of the evidence in the argument and in no wise mitigated by any instruction.
The evidence as to the use before 1902 of extra hoops on tubs to facilitate the destruction of the revenue stamp was, in my judgment, also inadmissible. It tended to show a conspiracy between some of the defendants to defraud the public by enabling tax-paid oleomargarine to be sold as butter and to defraud the government by evading payment of the wholesale oleomargarine dealers’ license.
The acts charged against defendants in the carrying out of the present alleged conspiracy are of a different character and have a different purpose. No swindling of the public is involved; the alleged criminal intent is not to defraud generally, or even to defraud the government generally, but specifically to defraud it by evading payment of the new and totally different tax on colored oleomargarine.
The effect of this evidence, too, was necessarily prejudicial to defendants. As counsel said in argument to the jury:
“The dealer could sell this oleomargarine as butter. That was the state of mind of John F. Jelke prior to 1902. He was willing to violate the law, without respect or regard to the laws of the United States. He made these tubs and put them up in such a way that his customers could defraud the people whom they were selling the goods to by selling this oleomargarine to them as butter, and made it possible for these dealers to defraud this government out of the whole license, by fixing the tubs up so that they could sell as butter, thereby deceiving the revenue officers.
“Ah, gentlemen, that situation shows the state of mind of John F. Jelke away back prior to 1902, and if at that time John F. Jelke would violate the law, John If. Jelke would assist these various dealers and customers of his in violating the law for the purpose of making a market for his oleomargarine, there is no reason to think that John F. Jelke would not violate the law in 1902, 1903, and 1906. * * *
“That transaction back in 1900, gentlemen of the jury, is for the purpose of showing the motive and state of mind towards the United States, and the enforcement of the law, of the defendant John F. Jelke.”
While in my judgment the court erred in unduly limiting the cross-examination, it is unnecessary to enlarge upon this point, especially as, in itself, it might not constitute reversible error.
