*1 milk con- their bottle months to these two America, UNITED STATES of puts for- then in its brief It sumers. Appellant, is of these One ward alternatives. two v. accepted, theory is if the “bottle” POTISHMAN, Scott, Leo af- Julian Transit judgment should be of the court Company Grain and Charles J. if “blend” other is that firmed. The theory Winters, Appellees. accepted, must No. 15533. overcharges include modified to July June, March, April, May, months of Appeals United States Court of August alone, them exclude and to Fifth Circuit. February. January and for the months of Feb. argument, however, coun- oral On the to, appellee we are for the seemed sel that, did, opinion he concede facts, “blend” the- overall under the ought ory accepted and the to be accordingly. ment reformed record
An examination of the light of these contentions leads us appellants over to the conclusion they state their case when claim that support find evidence is ing insufficient Indeed, appellee. kind for we think that the contention assumes a re quired beyond precision proof far experience required common usages opinion, of courts. In our
difficulty in the does arise case be support
cause of want of evidence to recovery pro on one or the other of the posed theories, diffi but because posed questions cult as to which of the supported two theories best in law arises, short, and in fact. out of whether the matter should be decided
upon govern appellants what call the oversimplistic theory, ment’s or “bottle” except which excludes all other milk Cameron, Judge, Circuit dissented. bought trade, for the bottle what appellants say proper one, is the tak ing into consideration all milk han milk, dled and all the uses made of all the including operation that furnished partners themselves. circumstances,
Under all the we are theory, especially inclined to the latter view of concession argument. in its and oral brief judgment will, therefore, be re- so as to exclude the claimed formed over- charges January months February, and include those for March to August, inclusive, reformed, and, as
will affirmed. *2 RIVES, TUTTLE Before Judges.
CAMERON, Circuit
Judge. RIVES, Circuit indict
The district court dismissed against Gov ment appeals. the indict Count 1 of ernment pro conspiracy under ment U.S.C.A.,1 714m(d), Title visions § (a),2 provisions of 714m violate the § 714m(c)3, U.S.C.A., Title Title 15, § remaining three U.S.C.A. charging counts counts are substantive 714m(a), Title U.S. violations § C.A. largely predicated The dismissal was estoppel, jeopardy, res or former
judicata, previous crim- on account proceedings had in the federal courts inal against some of the defend- at Houston against all of ants and New Orleans at them. was not named in Winters Potishman, Scott, Transit
indictment. Company, Fell- and a man named Grain Houston on a ten- rath were indicted at charging indictment, one count count counts. and nine substantive arraignment Upon of the defend- each guilty. date, pleaded At a later ants rearraigned, Trans- the defendants were counts, again guilty pleaded to all it Atty., Lowther, Asst. U. John A. S. pleaded defendants and the individual Worth, Floore, Atty., Fort Heard L. Tex., U. S. guilty to Counts 5 and 6 and not appellant. for remaining day counts. On that Orleans, La., dismiss re- Stone, moved to Dan New Saul maining Stone, Austin, Tex., as individual de- Moody, to the & Wisdom Orleans, La., Moody, Jr., all of the counts as to fendants and Dan Aus- New day, tin, Tex., appellees. the same the court Transit. On for applicable Corporation, conspires “(d) other Act with another 1. Whoever pun- shall, upon thereof, accomplish any conviction be the acts made unlawful by $10,000 provisions preceding a fine not more than of this ished sec- imprisonment by shall, upon thereof, not more than five or tion conviction sub- years, imprisonment, ject or both.” the same fine or or applicable both, in the case of con- willfully steal, “(c) Whoever shall con- doing unlawful" acts.” such viction remove, dispose ceal, of, or convert any own use or to that of another any his “(a) makes statement Whoever by, mortgaged property owned or or hold false, knowing whoever will- to be or pledged to, Corporation, shall, pur- or upon any security, fully overvalues thereof, punished by conviction influencing any way pose the action $10,000 than a fine not more or purpose Corporation, or for. the of the obtaining imprisonment for not more than five another, money, for himself or years, or both.” value, anything property, under sec- title, of under 714-714o of tions matters attach charged Houston as guilty, pleas accepted dismissed present indictment. requested the Govern- the counts as ment,4 probation officer to directed Potishman, defendants *3 investigation, and pre-sentence make a urged the Gov Scott and Transit day, sentencing postponed later until a alleged estopped by an ernment was defendants the individual at which time appeared, agreement and the made them between and, pre-sentence hear- after a Houston, attorneys at ing, were sentenced. pleas guilty de the of the individual of completely would fendants at Houston Houston no the There is basis on which charged finally dispose and of all matters support defense of could a indictment proof No of the entire indictment. jeopardy or as to former as to Winters agreement attempted, nor such an named in was not Transit for Winters require any indictment, did such the district court Govern- Instead, judge, proof. after stat the Transit. as to ment dismissed all counts length familiarity with at the his the court does not show that The record general accepting pleas practice of of of of the de- ever entered trial dismissing guilty indictment, and the on some counts Houston fendants under the except upon disposi complete others and final as a 5 and 6 to Counts in pleaded guilty. contained the tion of all matters defendants the individual dictment, effect, placed upon the Gov Those two substantive Houston proving charged of affirm respect burden ernment with false statements agreement atively to leave the defend an grain elevator, clear- and prosecution open ants later ly as the do involve the same offenses charged in dismissed matters of the instant three substantive counts counts.5 charge different indictment which false days Cir., States, made on different as to statements In v. United 5 76 F. Buie grain Judge 848, 849, speaking different New ele- Orleans 2d Foster Manifestly then, jeopardy did vator. this Court said: 4. The ber ease is make a Title al false defendant plea ishman, fendant of fact as well as ant 5 and 6. Counts ready, United States served with came the counsel, of America and the “The “And the “It “On this 30th and 6 were dismissed on motion entered rearraigned; whereupon of the defendant judgment the said passed presentenee investigation, guilty probation considered statements, appeared unlawfully making, etc., materi- U.S.Code, and both attorney be, Court, Attorney. and he at 9:30 as for sentence until Novem- plea reads: Indictment. copy “/s/ charged defendant, day I, officer for the United as defendant, 2, Vio. Sec. having A.M. law, Allen of person and all guilty hereby in Cts. 5 and 6. is directed to Court October, 4, finds the having Judge.” B. 7, 8, 9 and the defend- Indictment, announcing heard in Counts 714m(a), questions Leo adjudged Ilannay. Counts States 1953, with been Pot- de- think must follow mer There is accept what practice, of former it Grain agreement, mal an counts and there is trict there was exception to it. 3, 4, 7, 8, 9 4, 5, and O’. Julian Scott and William fendants — raigned “ * “If The docket “Govt, “Oct exception arrangement made, we think the [*] counsel, prosecution Attorney and 6, there ** took 30, 7, 8, —Enter proof Govt, no motion Co.— accepted by Court. 1953: jeopardy leave the others agreement is no evidence from the for- [*] place, 10 9 & requirement plea * * there accepted moved to offered entry plea or it can 10 as to all three de- Defts. defendants’ counsel unless [*] must Judge, against dismiss jurisdiction. was as follows: general practice, must be sustained. guilty between the Dis- dismiss Cts. former Guilty be Leo there was such there was an Fellrath [*] deft. Trans- Court.” proof Cts. open proof is shown that on certain Potishman, to Cts. 5 bound jeopardy this was 1, 2, 3, Unless of an [*] rear- 1, 2, plea for- our we “ conflicting count of evi- On this Judge brought Orleans was at New indictment District dence it was for the ground agreement say dismissed the court on to proven. whether duplicitous.6 the Gov it was ernment, Thereafter that immate- But deem we court, elementary in- entered with leave of the that an It is rial. prosequi nolle may of the entire indictment.7 dismissed dictment ap to dismiss same on motion reindicted defendant offense, pears only in, put in and must be considered not been if had he judge’s by, limited memorandum jeopardy. Appellant number cites a *4 ruling (footnote 6, supra) United .8 The that the to the effect of cases agreement en- or on the merits on a formal techni an States is bound pleading cal in a civil into her counsel defect tered holding case; where is no bar to a second action.9 other cases compro- been claims have revenue conspiracy The count in the New Or- prosecu- paid criminal mised charged leans indictment the defendants barred, cases and other tions are conspiracy with modity “to defraud the Com- where, holding have witnesses Corporation Credit and the Unit- testimony give compelled to been against America, ed 15, Title States of and to violate inves- before an themselves 714m(a) Code, United States Section immunity tigating authority results. charged 714m(c).” and conspiracy thus both these to review useless It would be general conspiracy under the point, cases, them are as none of statute, 371, 18, Title United States § deci- are not aware and we Code,10 conspiracy and a under 714m§ controlling persua- sion, or either (d), 15, Title United Code Anno- States support sive, conten- would (footnote 1, supra). conspir- tated acy The appellant. hesi- have no tion of We present count in the indictment omit- govern- holding tancy in any charge conspiracy ted to defraud prosecute estopped to ment Commodity Corporation Credit regardless of appellant in case this 371, 18, United States under Title § Unit- agreement made as whether Code, conspir- ed States and confined the alleged.” acy to one under Ti- 714m(d), § also, Buck- Columbia v. See District of 15, Annotated, tle United States Code 301, 17, ley, U.S.App.D.C. F.2d 128 75 curing any duplicity thus that inhered in C.J.S., 20; Law, 257. 22 Criminal § New Orleans indictment. Certainly, present state grounds record, dis- it cannot held that the Gov- motion to anything estopped miss not relied that oc- were district ernment argued proceedings. appel- court are not in the Houston curred deny Eaton, Cir., dis- 8. the motion to Aetna Life Ins. Co. 6. “The Court will v. 2d 711, De- F.2d 43 the indictment as to all of miss exception 1, fendants, with Count Co., 9. Gould v. Evansville & R.C. 91 U.S. ground on the which it dismisses 416; Louis, L.Ed. 23 St. South- duplicitous.” Ry. Bolinger v. Co., western Co. & 5 Ameri- United States of 7. “Now comes the Cir., 925; Passailaigue 17 F.2d v. through undersigned, suggest- ca, Herron, Cir., ; 5 38 F.2d leave the Court to file a Judgments, C.J.S., 643, pp. 77, § herein is de- the indictment dismissal enter, subject 714m(e), sired, providing 10. See 15 § now U.S.C.A. does Prosequi general penal granting leave; apply of such Nolle statutes with exceptions. certain in this cause. Smith, Prim B. Jr. “/s/ Attorney “Assistant United States Orleans, Louisiana, at New “Granted: day November, 17th A.D. 1954. Wright Skelly J. “/s/ “Judge” clearly and cause of In indictment action.1 each They appear so to us forego lees’ brief. count, conspiracy count one was the further that we without merit in each indictment certain acts done discussion. set furtherance of the were judgment is forth substantive in additional counts as Reversed. minor variations offenses. There were respect to between the indictments with Judge (dissent- CAMERON, Circuit charged. the overt acts But each ing). prosecution three efforts had its found The Court below alleged criminal course base the same indubitably for- punished had been period of action of time. over the same prosecution crime for the entire mer charged agree- that, by The Court below found us now before indictment ment between the and with right legal or not be and that it would Court, sanction Houston in- again punish the same crime. them disposed had been of under dictment finding upon the was based This *5 such circumstances to clear as make it proceeding, former in the ment entered punishment out that was there meted (con- it rested which and the sisting evidence in to cover the entire offense embraced made counsel of statements all of indictment and the counts of the together court), open with and others including Court, parties, that all in- custom, known to the Court the universal no tended that there should further below, prevailing that where punishment put appellees for fac- relevant had been tors, and other entered in- the activities embraced within that Court below. also to the known plain that this is true as dictment. majority opinion, that The reverses fact, a matter the Government but ground there is ment on the that attempts escape to effect of what was to sustain those sufficient in the record findings. there done in the because actors ma- I think that the Because expedient adopted Houston drama jority’s to weaken faith action tends having imposed sentence two under mutually placed in each and trust by counts of that indictment while dismiss- officers, the attor- and its the Court ing remaining counts. A considera- performance neys, of the so vital handling tion of the record of the of the judicial function, I am constrained case, which was introduced in grounds my dissent. out set objection, the Court below without will present indictment The essence support show true facts indictment) brought (known Dallas as findings of the Court below. February, appellees is that en- The docket entries of the Houston Di May, January, gaged, 1951 and between show that the was vision indictment filed carrying 1953, out de- 5, 1953, appellees October were ar Commodity Corpora- Credit fraud raigned pled October by making false statements to it tion guilty to all counts and the case was whereby purchase from it was induced to January passed findings U, The Company inferior Transit Canadi- Grain that, of the Court below disclose “Later circumstances as to an under such wheat proceeding further, and before a con conversion under 15 amount to a U.S. ference was held between the defendants’ (c). 714m(a) and C.A. § counsel, counsel the Government aft prior attorneys appeared of a indictment er The essence in court » ** * brought October, Houston, 1953 at criminal docket next con (known indictment) entry 30, as Houston 1953, tains dated October Texas an precisely appellees pleas guilty the same facts formed entered was growing part important phase indictment out of the an in this 1. A third brought was decision. facts New identical same Louisiana, play Orleans, it does not this in all We forth at Govern of the counts. set counts and six and that the five remaining point portion of the statement ment moved to dismiss Attorney to as Assistant United as counts States counts and all to. Judge Hannay: Company, defendant, Transit Grain “Accept arrangement and that indict- “The time covered in the * * day ed the same Court”2 On begins Be- in 1950 ments reciting appel order was entered ginning year 1950, Transit be- plea lees entered a gan purchasing quantities of Cana- five and six of the indictment and grain question dian Grain. were, dis the remainder of the counts imported by but was was not purchased Transit States missed on motion of the United after it had come them Attorney. The order recites further They United into the bought, States. it was entered the Court after “hav period over there of time heard the of the defendant in excess from 1950 and questions all as well as law 1,000,000 had of fact of wheat that bushels probation di officer imported into United been investiga pre-sentence rected to make a quota exempt from States passed tion and the case for sentence human unfit for with the notation findings until 1953. The November consumption. That doesn’t mean probation appear in officer do not actually unfit for wheat is record, remarked but the Court below consumption human because *6 they very largely that “will show what respect requirements in tariff that in assessed the Court had mind when he are from the food and different * * * the and if he a sentence sentence assessed Ap- drug requirements. present that embraced what is now to be proximately 1,000,000 of bushels ed to this Court”. 650,000 wheat, approximate- bushels counsel, ment) appeared for the United States ney On November appellees appeared who had signed Attorney (the Court 11th, the Government the Houston indict- in called the Assistant person same and Attor- each and Elevator. The balance tom [*] ly “ [*] * the New bond [*] * * shipped they shipped the in Orleans bond Houston Public and over Elevator. shipped in 650,- cus- Sample attorney showing Cana- 000 of Grade for a which the Court bushels wheat, shipped might passing in addition dian and as the basis for consider Sample wheat and Grade all of the sentence. The statements of 300,000 grain of almost to the attorneys total course of dealt with the entire during period from bushels dealing of embraced in all of the counts early part of Feb- June 1950 indictments.3 The tran- *** Commodity ruary, 1952. transpired script full hear- of what paid Corporation would have Credit Judge Hannay Houston at before approximately $79,000.00 more than men- two counts were that these shows they should, much more about that two, casually only while a time tioned they got value of in accord than attorneys in detail of the talked all of *" * * book entries. with the 1,000,000 in the con- described bushels constituting Every statement referred to of that spiracy sum word count and giving wrongdoing the over- count all embraced total Corporation by writing modity supplied a emphasis Credit here and The May Covering single a opinion throughout dated unless otherwise this wheat; 55,000 bushels item of noted. charged statement a false sixth count writing February appellees guilty in a dated plea was to fifth 3. The covering 15,300 charged bushels of counts; count a the fifth sixth by appellees wheat. to Com- statement false brought February, In the picture the activities all sustaining by appel- re- a motion part course against appellees and no indictment, the Court to dismiss the lees items covered ferred findings of fact entered written below Govern- asked The Court six. five part quoted: is here which a con- from questions a number of ment counsel cerning appellees profit which total is that indictment “Our view during the transactions from the transaction, portion derived to one relates questions income period; and whole was to be consummated of which brokerage were taxes, like fees and the portion another in New Houston and attor- fully discussed. Government We consider the Orleans. ex- ney’s also with dealt statement offense same [as] two acts activities prosecutions may tent to which two wrong disposed morally and was were be had therefor. heard The Court feature. minimize urged “It is also. witnesses of character a number prosecution Houston did at the Attorney United Assistant States dispose of the entire case that there long during spoke of times a number guilty only two was a discussion, and, the last towards appears, however, from counts. up hearing, situation summed rep- uncontroverted record and with recommenda- these words par- respective resentations tion : Court, when the ties to now, thinking along here, “I am case was called for trial believe, I don’t with Court. Judge Hannay Allan before plea justice my opinion, re- would of not was entered quire one these men counts, but after conference all past time and with their of life held between the defendants’ given any record should be time counsel and the Government’s attor- *7 jail, penitentiary, or in the serve ney that the defendants then came they are in view of the also fact guil- and entered into court a of pay For a substantial fine. able counts, ty to two Nos. and and my reason, is recommendation the Government counsel then very im- that a substantial fine in dismissed all the other counts posed as to each three de- of the the case. impose the fendants and Court not proceeding “The has occurred in any jail penitentiary or sentence.” country the courts of our time with- Judge hearing At conclusion of the the during many out number and our Hannay against appellees levied fines years bar, engaged at the of much each, including $20,000.00 peni- of tentiary also practice the time in criminal where concurrently sentences to run against were several there cases a suspended, appellees and to be and the charged defendant or several counts placed probation. were on All of those against him in one and de- case the proceedings were taken in the Houston Attorney fendant and the District Judge Hannay Division under on Novem- open into entered and de- court the 11th. ber pled fendant to one case or Following government and the the one count dis- enforcement those sentences, cases, proceeded the missed all other counts Government bring the an indictment in intended to make New Orleans disposition upon the entire based the same and contro- facts cause versy the action. The and that dismissal was Court there dismissed the purpose definitely duplicity, whereup- for the count done for disposing finally on the and the entire Government dismissed the remain- Bench, the case. And while the we indictment. The Dal- las indictment now before us was seen the same occur scores of then have say it insisted This is not to that the have never had record be-
times and relatively counsel imposed by icated indictment as right flect These has been the bench years attempt or seen again so, the fifth “That beyond of the nor could the defendant. upon the upon wé revived. findings general practice insignificant [*] has been our the Houston Court counts dismissed have never varied thing, our uniform case where which and doubt that vary a whole and not offense [*] sixth counts. The and the doWe is in so the Court from they these [*] offenses covered understanding charged by position there was an were based not. it.” the sentences practice on ' statement [*] forty-five feel that could were law. from it upon the felt, was to do [*] pred- It real re- proper whole of tire indictment. with the that the punishment meted out should made of the and extent of the tained ed the Court’s dealings. clearly ments of Court and counsel view. fore the Court ample support Judge Hannay. disposition It is not law, too, based punishment help judgment It counsel, charges, offense upon is of all judgment possible acted below which equally sanctions the entire accusations Judge counsel, without inflicted who recommended intended that the indictment; to read the state- action, whole course did. Judge toas what was clear that entering not furnish upon perceiving represent- weighing,, cover under re- findings Hannay gravity which con- and en- having once, that, paid penalty procedures of the Court full below they upon were reached. should not be called A constituting again product facts, is the its suffer for same ment court to merger pleadings, doing, proof, of the In so it looked to the offense. findings language judgment itself, it actions taken and enter- of the language arriving beyond ed in A to the facts it. is to be looked attending judgment. entry like construed other written instruments substance, re- It fusing its decision and the determinative factor the in- based absolutely chained form. to be tention Court. As is the case with writings, truth, if searched and found there doubt about meaning scope felt it rather the the used itself bound than terms entry employed proper *8 of is to admit evidence extrinsic mechanics4 the chiefly judgment. just felt itself to It beholden establish what before the giveth spirit judgment upon life to the which Court which the predicated.5 to letter which rather than the killeth. suggested ought following language outlining pro- 4. It to is the priety considering of have made record extrinsic evidence: of “ by by proceeding perfect permitting estoppel letter ‘It is of the essence of judgment pre- counts in the indictment it is certain that all of the to re- proof alive, introducing enough by main to cise fact determined the former requirements satisfy judgment.’ Hanscome, De the technical Sollar v. 158 jeopardy. 216, 816, 818, This would intro- 15 S.Ct. L.Ed. double have U.S. 39 operation wholly judgment an element sham lack- ‘To this of the it duced appear, actually must either the face of in the mechanics used at by evidence, which, by record or shown extrinsic as found Court precise question way and below, disposing was raised is universal determined the former suit. If there area, indictment in that an entire even any uncertainty this head in the though relates to * * * subject-mat- part only record the whole of it. large, and the action will be ter of Am.Jur., Judgments, 31, p. 834; contention, open Par. unless 30 a new this un- to pp. 284-5, certainty ib. Par. 998-9. In be removed extrinsic evi- Kelliher point Webster, Inc., showing precise 1935, Cir., v. & involved Stone dence 331, apply judgment, F.2d this Court and determined. To used general of the Houston under the Moreover, rule indictment was it is the eye judg- judg- watchful applied Court and
interpretation
to a consent
only
is ment of
was entered
after
that;
judgment
consent
sentence
“A
ment
hearing.
judgment
parties
en- a full
was bom
had
That
ifas
construed
to be
sign-
confirmatory
duly
contract,
of and
events and
into written
tered
representations leading
embodying
it. The
delivered,
therein
and
ed
fully explained,
ment
in-
From
stands
judgment.”6
of the said
terms
appears en-
tention of the Houston
en-
Court
custom
universal
this it follows that
tirely
light
every
clear in the
by
of the evidence
part of
becomes a
ters into and
Judge
Hannay
interpreted
every heard
and
just
judgment
does
as it
consent
usages with the aid of
universal customs and
as
evidence
contract.
“While
the other factors well known to the Court
caution
is received with
and customs
gen- below.
cases,
established
all
there are well
admissibility
governing
eral rules
uphold
To fail to
Court below
the essential ele-
such evidence. When
findings
its
and
is weaken
or conditions of the existence
ments
judicial process
point.
In
at a vital
usage
shown, such
valid
or custom are
system
the federal
the success or failure
given
usage
as
or custom is to be
effect
functioning
process
of this
and as
one of the terms of the contract
lodged largely in the hands of the Dis-
though
binding
it were
on the
as
Judges.
things
They
trict
they are,
deal with
general
written. The broad
rule
according
with situations
usage
proof of
is ad-
a valid
custom
They
the real
truth
them.
have con-
written
missible
annex incidents to a
by calling
ferences without number
coun-
Construction,
instrument,
aid in its
during trial,
they
sel to the bench
and
par-
and to ascertain the intention of the
confer likewise in their chambers with
matters about
ties in reference to
attorneys
litigants.
respective
”
55 Am.
the contract is silent
tendency
procedural
rules8 is
Usages
Customs,
27, pp.
Jur.,
and
Sec.
utilizing conferences between
towards
see,
effect, Bli-
And
to the same
287-8.
to shorten trials and
court and counsel
England
Co., 23
ven
How.
v. New
Screw
easily
speedily
approach more
cloistered functionings eye upon cal these judicial process to the admin- so essential justice.
istration of justice back set cause of will be immeasurably representing, those if organ- being, ponderous time to be re- ism our are which is pudiated nullified and their actions goaded change personnel9 accident of importunities fed- of overzealous apparently eral functionaries who are unwilling accept judgment, as to pro- punishment, extent when that re- nounced those clothed with sponsibility. This sustains action record attempting Court below. it was What right, was to make Government do just I am im- as individuals must do. pelled approve applaud such ac- Therefore, I
tion. dissent. BROWN, as Executrix Eleanor C. Last and Testament of William R. Will Deceased, Plaintiff-Appellant, Brown,
v. COMPANY, Inc., & WILSON Defendant-Appellee. No. 11480. Appeals Court of United States Circuit. Seventh Feb. *10 brought Houston, findings eeutions were not the Court below stated: 9. In its known, apparently where all are but at facts feels “The points Hannay apparently by Judge penalties in an effort were assessed ”* thought inadequate a climate more find favorable This . pros- Government’s views. that the new fact buttressed