245 F. 888 | N.D.N.Y. | 1917
Generally, the indictment gives the names of some of the persons to whom the pamphlets were given and distributed, and also states that the names of the persons solicited are to the grand jurors unknown. It is also stated that the various places in Albany — that is, the particular places where the circulars were circulated and distributed by defendants — are to the grand jurors unknown.
When the charges of an indictment are so general that they do not advise the defendant of the specific acts of which, he is accused, the court may direct that a bill of particulars be furnished him so that he may properly prepare his defense. Kettenbach v. United States, 202 Fed. 377, 382, 120 C. C. A. 505. The granting or refusal of the bill of particulars rests in the sound discretion of the court. Rosen v. United States, 161 U. S. 29, 35, 16 Sup. Ct. 434, 480, 40 L. Ed. 606; Breese v. United States, 106 Fed. 680, 682, 45 C. C. A. 535. When a bill of particulars is once made and served, “it concludes the rights of all parties who are to be affected by it; and he who has furnished a bill of particulars under it must be confined to the particulars he has specified, as closely and effectually as if they constituted essential allegations in a special declaration.” Commonwealth v. Giles, 1 Gray (Mass.) 466, cited and approved in Dunlop v. United States, 165 U. S. 486, 491, 17 Sup. Ct. 375, 41 L. Ed. 799. In United States v. Adams Express Co. (D. C.) 119 Fed. 240, it is said:
“The office of a bill of particulars is to advise the court, or more particularly the defendant, of what facts, more or less in detail, he will be required to meet, and the court will limit the government in its evidence to those facts set forth in the bill of particulars.”
It is seen that this court ought not to direct a bill of particulars which if made and served, may seriously limit and embarrass the government in its legal proof and result in shutting out evidence of certain pertinent facts not now fully known to the United States attorney. It is not to be presumed the United States will offer false or perjured testimony on the trial, and, in view of the nature of the case and of the charges made, it may be assumed the defendants know when and where they made speeches, if any, solicitations, if any, and the nature and character thereof, and also the names of the persons solicited, if any particular person was solicited. I do not think the government should be compelled to disclose the names of its witnesses. It is charged in the indictment that August 26, 1917, the defendants made personal solicitations (meaning in aid and execution of the conspiracy charged) from “various persons whose names are to the grand jurors unknown.” If the names are unknown to the grand jurors, it is fair to presume such names are unknown to the United States attorney. The court should not require that officer to undertake to give information he does not possess or in default shut out competent proof on the trial. It is charged as an overt act that August 26, 1917, in and about the city of Albany, the defendants and each of them made public
As already stated, it would be impracticable to require the United States to set out the evidence which it expects to give on the trial. The nature and character and general substance of these solicitations is set forth by charging the nature and character of the conspiracy and what defendants conspired to do and bring about. The overt acts charged, giving time and place with reasonable certainty, state that pamphlets were distributed, copies of which are made a part of the indictment, speeches made in aid and execution and furtherance of such conspiracy, and personal solicitations indulged in. I think this sufficient to apprise the defendants that evidence will be offered that in such speeches and solicitations defendants spoke words and used language encouraging and advising others to do or cause to be done the very things they are charged with having conspired to do. The allegations of the indictment is notice to the defendants that they must be prepared to meet such proof. “Solicit” means to ask, request, urge, etc., and it being charged that defendants had agreed to do certain acts, and that defendants solicited persons to aid in doing such acts, the nature and character of the solicitations is so clearly and sufficiently indicated that defendants cannot be prejudiced on the trial. The witnesses called to prove the solicitations on a given occasion may disagree as to the words used by the defendants, while agreeing as to the substance and meaning of the words used and some of the language. It would be prejudicial to the United States to compel it to set out the language each witness is expected to testify to as having been used by a defendant on a given occasion. Each witness will lie entitled to testify to what he recollects was said, and the question will he: Was the language actually used, to promote or aid in the execution oí the conspiracy, if one is found to have existed? The precise words used may not be material, and it would be wrong to put the government in a position where it would be precluded from proving what was actually said on a given occasion should the witness on the trial vary from the language of the statement he is now expected to testify to.
“If a federal prisoner is not indicted for a capital offense, he is not entitled as of right to,a list of witnesses.” Jones v. United States, 162 Fed. 417, 89 C. C. A. 303, writ of certiorari denied 212 U. S. 576, 29 Sup. Ct. 685, 53 L. Ed. 657.
“In cases not capital the United States attorney is not hound to furnish defendant with the names of witnesses.” United States v. Butler, Fed. Cas. No. 14,700.
“The court will not, in advance of the trial of a * * * ' case not capital, * * * require the United States attorney to give him [defendant] a list of witnesses examined by the grand jury.” United States v. Aviles (D. C.) 222 Fed. 474, 477.
The application for a hill of particulars and a list of witnesses is denied.
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