288 F. 368 | 3rd Cir. | 1923
Schliefer was indicted with nineteen others for conspiring, at a named time and place, to commit an offense against the United States (section 37 of tire Criminal Code [Comp. St. § 10201]), that is to. say, to unlawfully import into the United States intoxicating liquors for beverages purposes in the form of whiskey containing more than one-half of 1 per cent, of alcohol, in violation of the National Prohibition Act (Act of October 28, 1919, c. 85, 41 Stat. 305).
The overt acts pleaded were the participation by certain defendants in the loading of Scotch whiskey aboard a vessel at Nassau, its transportation to a point off the New Jersey 'coast, and its transfer to shore by motor boats. After trial and conviction the defendant sued out this writ, .assigning as error, inter alia, the refusal of the trial court upon motion to quash the indictment.
This indictment is; mutatis mutandis, like the one in Rulovitch, et al. v. United States (C. C. A.) 286 Fed. 315. While the indictment in that case cannot be regarded a model of criminal pleading, it stood the tests and was, in our opinion, valid. Hence the Rulovitch decision rules the question raised here.
The next matter assigned as error was the refusal of the trial court to direct a verdict of acquittal. The evidence which this assignment brings under review is substantially as follows:
Holden, a “beauty doctor,” engaged in business in Atlantic
But this is not quite what the defendant complains about on this writ of error. In the assignments relied upon, he does not find fault with the court's rulings on the admission and rejection of testimony, nor with its instructions on the law, for the only exception he made to the charge was a general one. Rules of Circuit Court of Appeals for the Third Circuit, rule 10, section 1 (224 Fed. vii, 137 C. C. A. vii). Philadelphia & Reading Railway Co. v. Marland, 239 Fed. 1, 13-15, 152 C. C. A. 51. He maintains rather that because Fertig, Holden and other defendants were arraigned after the jury had been drawn to try him and because they pleaded guilty in the presence of the jury, the irresistible conclusion is that his trial was unfair. In addition he complains that the testimony of Fertig, an accomplice, was not corroborated and that it should not have been considered because in return for his testimony he received immunity by a light sentence subsequently imposed and the release of his boats from confiscation. After reading all the testimony we are satisfied that no irregularities occurred in the prosecution which tended to prejudice the trial of Schliefer; that if convicted on the testimony of accomplices, the court committed no error either in admitting their testimony ór instructing the jury on the law; and that the record fails to show that immunity was promised any witness in consideration for his testimony.
Nor does the testimony fail to sustain the charge of the indictment as to the character, content and intended use of the liquor un
The judgment below is affirmed.