139 F. 697 | U.S. Circuit Court for the Northern District of Georgia | 1905
This case is now before the court on a motion for a new trial and on a motion in arrest of judgment. I think the law of the case was correctly given to the jury in the instructions of the court. The evidence was certainly sufficient to ■support the verdict.
The first question for consideration is whether, under the evidence, the conspiracy was merged in the completed offense. The indictment was drawn under section 5440 of the Revised Statutes [U. S. Comp. St. 1901, p. 3676], and was for a conspiracy to commit •an offense against the United States; that is, the offense of removing distilled spirits from a distillery where produced to a place other than the distillery warehouse without having paid the tax required by law. Whatever may be the correct rule as to merger of conspiracy in the completed offense under the practice in the •courts of the United States where the conspiracy is a misdemeanor and the completed offense a felony, it is perfectly clear that the rule of merger does not apply here, where the penalty is so nearly alike as it is under sections 5440 and 3296 [U. S. Comp. St. 1901, pp. 3676, 2136]. Section 5440 makes the penalty for a conspiracy a fine of not' more than $10,000 or imprisonment for not more than two years, or both such fine and imprisonment, in the discretion of the ■court. Section 3296, for removing distilled spirits in violation of law, fixes the penalty at not less than $200 and not more than $5,000, and imprisonment not less than three months nor more than three years. In the conspiracy section, the imprisonment is only a year less, while the fine may be double that of section 3296. They are ■offenses of the same grade — both misdemeanors — and, under the well-established rule, there would be no merger of the conspiracy in the completed offense.
I have no question whatever about the correctness of the decision at the trial that the defendants were only entitled to ten challenges, under section 819 of the Revised Statutes. Indeed the court gave the defendants the benefit of the doubt in allowing them-ten challenges instead of three, which number it might be argued they would only be entitled to when on trial under section 5440.
The foregoing embrace the only matters which it seems to me necessary to discuss in connection with these motions.
Both the motion for a new trial and the motion in arrest of judgment are denied.