285 F. 164 | E.D. Pa. | 1923
The indictment charges a conspiracy to defraud the United States by the unlawful issuance of permits to purchase liquor in amounts and character other than those to which the permittee was lawfully entitled, to persons not permittees, and in the names of permittees who had not made applications or applied for permits, and at offices of the Director of Prohibition, where the records of permittees were not on file. The indictment sets out that the 47 defendants named conspired to defraud the United States in issuing and causing to be issued fraudulent permits by McConnell, Prohibition Director, and prohibition agents in charge of the Philadelphia and Pittsburgh offices, to be used by others in obtaining liquor from vendors for unlawful sale, delivery, and transportation. A widespread conspiracy is charged, of which McConnell, the Federal Prohibition Director for Pennsylvania, is made the head, with, as subheads, Wolfe, the prohibition agent in charge of the Pittsburgh office, Slater, prohibition agent and secretary to the Director, and Benner, prohibition agent, both of the latter of the Philadelphia office, and all three having the power of approving applications for permits, and Wolfe and Slater having authority to sign the Director’s name and issue permits for their respective localities.
The conspiracy was to be accomplished through subgroups. The fraudulent permits were to be issued by McConnell, Slater, and Benner, to Singer, Blumberg, and others, who were to use them in the purchase and withdrawal of liquor, were to cause it to be transported, and were to sell and deliver it to Bookbinder, McCarter, and others. They were to be issued by McConnell and Wolfe to Robin and others, who were to use them in the purchase and withdrawal of liquor, were to cause it to be transported, and were to sell and deliver it to persons unknown. They were to be issued by McConnell and Wolfe to Branagan and Gottfried and others, who were to use them in the purchase and withdrawal of liquor, were to cause it to be transported, and were to sell and deliver it'to persons unknown. They were to be issued by-McConnell, Slater, and Benner to Smith, Kearns, and others, who were to use them in the purchase and withdrawal of liquor, were to cause it to be transported, and were to sell and deliver it to persons unknown. The indictment then sets out overt acts by Wolfe, Benner,,
If the pleader had not set out the issuing of the fraudulent permits to a number of separate groups of conspirators, the demurrer would have to be overruled, under the authority of Judge Dickinson’s opinion and judgment in the case of United States v. Slater et al. (D. C.) 278 Fed. 266, No. 165, September Sessions, 1921, as in the charging part of the indictment and the description of the conspiracy the language of the indictment now under consideration is practically an exact paraphrase of the indictment held good in that case. But in the present case the pleader has done more. He has set out’in one count of the indictment a conspiracy which includes separate acts by separate groups connected through Wolfe, Slater, and Benner, with McConnell as the head, which the defendants contend is in effect the charging of four separate conspiracies in one count.
While, under section 1024, R. S. (Comp. St. § 1690), it is allowable to join in one indictment'several charges against any person for the same act or transaction, or for two or more' acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses which may be properly joined, instead of having several indictments, there is no authority under the law for joining in one indictment, even in separate counts, such charges against different persons, and, where they are against the same persons, each charge must be sot out in a different count. The question whether the conspiracy charged in the indictment to be a general one among the defendants named, which is to be executed through different parties to the general conspiracy by different acts at different times and in different places, is indeed a single conspiracy, is a question of fact, and, if the indictment sufficiently charges such a general conspiracy formed knowingly, willfully, ‘and unlawfully, it should not be held void because of the mere division of the entire class of conspirators into several groups having respectively different acts and functions to perform. Wilson v. United States, 190 Fed. 427, 111 C. C. A. 231. If, however, the charge of conspiracy in the indictment is merely that all the defendants had a similar general purpose in view, and that each of four groups of persons were co-operating without any privity each with the other, and not towards the same common end, but toward separate ends similar in character, such a combination would not constitute a single conspiracy, but several conspiracies, which not only could not be joined in one count, but not even in one indictment. Section 1024, R. S.; McElroy v. U. S., 164 U. S. 76, 17 Sup. Ct. 31, 41 L. Ed. 355; Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. 249, 63 L. Ed. 561; United States v. Clark (D. C.) 125 Fed. 92. But we must look, not to what may be the evidence to support the charge in the indictment, but to the charge itself, and see whether it sets out what Mr. Justice Holmes in United States v. Kissel, 218 U. S. 601, 31 Sup. Ct. 124, 54 L. Ed. 1168, aptly terms “a partnership in criminal purposes.”
The indictment charges that all the defendants conspired together knowingly, willfully, and unlawfully to defraud the United
As to Slonaker, the indictment charges that he knowingly conspired with the others, and, although it is nowhere stated what he was to do in connection with the conspiracy, it is charged with particularity of what the conspiracy consisted, and Slonaker’s knowledge thereof. He or any other defendant has the lawful right to apply for a bill of particulars.
As to each demurrer, it is ordered that it be overruled, and a judgment of respondeat ouster entered.
