Brolaski v. United States

279 F. 1, 1922 U.S. App. LEXIS 1487

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 13, 1922
• Docket: No. 3757
• Status: Published

Opinions

GIEBERT, Circuit Judge.

Under an indictment which charged them with conspiracy to violate title II of the National Prohibition Act (41 Stat. 305) and Regulation 60, promulgated by the Commissioner of Internal Revenue, the plaintiffs in error were convicted. The indictment set forth the means whereby the object of the conspiracy was to be effected, and certain overt acts were alleged to have been committed in pursuance thereof.

[1-4] Error is assigned to the denial of the motion of plaintiffs in error in arrest of judgment, and their motion for a new trial. While rulings on neither of these motions is assignable as error in a federal appellate court, such courts must always entertain the question whether an indictment charges an offense, and the question of the jurisdiction of the court below. It is contended that the indictment is insufficient to charge an offense, and that the jurisdiction of the court below is not shown in that no venue is alleged as to the offense as charged. But it is distinctly alleged that at the city and county of San Francisco, Northern district of California, the defendants willfully, etc., conspired, combined, and agreed together, etc. It is only in the allegations as to one of the numerous overt acts that there is failure to allege venue, and that failure cannot affect the validity of the indictment. The overt act need not in itself state a criminal offense, and it is not necessary that it shall have been committed within the jurisdiction in which the conspiracy was entered into. Aside from that one overt act, the venue is distinctly alleged in all the other overt acts which are pleaded. Unquestionably the indictment charges a violation of section 37 of the Criminal Code (Comp. St. § 10201). It is urged that it is no crime to violate Regulations 60. But the indictment charges also a conspiracy to violate certain provisions of the National Prohibition Raw. And a conspiracy to violate Regulations 60 would in any view be a conspiracy to “defraud the United States.”

[5] It is contended that the court below erroneously admitted certain testimony which is said to have been hearsay. One Anderson, a ’witness for tlie prosecution, had testified that Brolaski persuaded him to go into the wholesale liquor business, and to get a permit; _ that Anderson got the permit, had it in his possession but a short time when Brolaski took it from him and retained it; that Anderson desired to cancel the permit and return to his home in Nevada, hut Brolaski and Gamage, one of his codefendants, induced him to execute a power of attorney to Gamage, promising Anderson to protect him and pay him 25 per cent, of the proceeds of their sales. To corroborate Anderson’s testimony the government was permitted to introduce testimony to the effect that in the files of the local prohibition office at a certain specified time there was no power of attorney to anybody, and that a few days later Anderson’s power of attorney to Gamage was found r", ¿tie files. This evidence was clearly admissible in corroboration of Anderson’s testimony, and none of it was subject to objection on the ground that it was hearsay.

[6] It is contended that the evidence was insufficient to justify the verdict. There was no motion for an instructed verdict on behalf of the plaintiffs in error, and no ruling of the court below on the sufficiency of the evidence is found in the record. This court cannot be called upon to weigh the testimony, and it is not contended that there was no evidence which if credited would sustain the verdict.

[7] The principal contention is that the court below coerced the jury. Six and one-half hours after the jury retired to deliberate upon their verdict, they returned into court and asked to have portions of certain testimony repeated to them. Shortly thereafter the jury retired to a hotel for tlie night, and in the morning they resumed their deliberations, and at 11:40 a. m. returned into court and reported that it would be impossible to reach an agreement. The court then said:

“I do not desire to impose any hardship on you, gentlemen, but T was very much surprised to read in the papers yesterday morning that some sporting gentlemen with an apparent foreknowledge of the result were betting two to one on tlie result of the trial. There (lid not seem to me to be anything in the ease warranting any such long odds. I do not desire to bo a party to the easy winning or losing of bets of that kind. 1 think that the others who had confidence in the twelve men, if I may borrow a betting phrase, should at least have a run for their money. So 1 shall ask you to retire again.”

These remarks were excepted to, and they are the basis of the assignment of error on which the plaintiffs in error rely. The jury again retired to deliberate, and nine hours and ten minutes thereafter they came into court, asking for further instructions. Having received such further instructions, they again retired, and at 10 o’clock on the following morning, 12 hours and 55 minutes after so receiving instructions, the jury returned with their verdict. No exceptions were saved as to any of the proceedings, subsequent to the time when the court made the remarks which are here presented as grounds for reversal. We have given careful consideration to the remarks.' We are unable to see in them anything of duress or coercion. It is not improper to send a jury back for further deliberation after they have announced in positive terms that they cannot agree. It is not improper to impress upon them their duty to reach' an agreement. It is not improper to direct their attention to the serious nature of the crime charged. There was nothing in the remarks of the court that tended to urge or induce the jury to find a verdict against the defendants. The court at all times gave the jury to understand that the facts in the case were matters for them to determine; that it was their duty to determine them in,accordance with the evidence as it honestly appealed to them. At the time when the jury came back for instructions, the court said:

• “It is no pleasure to me to keep you gentlemen together for what might seem to you to be an unreasonable time, and yet, under all the surrounding circumstances of this case, I feel it my duty not to discharge this jury until they have exhausted every honest effort to reach a verdict.”

The case lacks the features which in Peterson v. United States, 213 Fed. 920, 130 C. C. A. 398, rendered the instructions erroneous.

The judgment is affirmed.