Opinion
No. 3959.
November 9, 1928.
Appeal from the District Court of the United States for the Western District of Pennsylvania; Robert M. Gibson, Judge.
Daniel J. Shields was convicted of conspiracy to violate the Prohibition Act, and his motion in arrest of judgment was overruled, and he appeals. Affirmed.
The opinion of Gibson, District Judge, in the court below, in refusing to arrest judgment, is as follows:
"The defendant, Daniel J. Shields has been convicted upon an indictment which charges him and certain others with having conspired `to commit certain offenses against the United States, to wit, to unlawfully and willfully manufacture and possess intoxicating liquor containing more than one-half of one per centum of alcohol by volume, which was fit for use for beverage purposes.' A motion in arrest of judgment has been filed on behalf of the defendant named. The basis of the motion is the alleged failure of the indictment to describe an offense. It is urged that the indictment sets forth a conspiracy to do an act which may, or may not, be an offense against the United States, in that it does not recite that the liquor to be possessed and manufactured was designed for beverage purposes. To sustain their position counsel for the defendant have cited, inter alia, Middlebrooks v. United States, 23 F.2d 244 (C.C.A. 5th Ct.). An examination of the indictment in the instant case will disclose a difference between it and the indictment in the Middlebrooks Case, in that the present indictment alleges a conspiracy to unlawfully manufacture and possess liquor fit for beverage purposes, while the indictment in the Middlebrooks Case merely charged a conspiracy to manufacture, etc., liquor fit for beverage purposes.
"The form of indictment in the instant case has been considered by the Circuit Court of Appeals for this circuit. See Rulovitch v. United States, 286 F. 315. In that case the form was approved by the Court of Appeals and the United States Supreme Court refused a certiorari ( 261 U.S. 622, 43 S. Ct. 434, 67 L. Ed. 831).
"It will be noted that the defendant in the instant case has been tried twice upon the indictment which he now alleges charges no offense. He was convicted, sued out a writ of error to the Circuit Court of Appeals, and upon affirmance of the conviction by that Court [ 17 F.2d 66], brought the matter before the United States Supreme Court, which reversed the judgment [ 273 U.S. 583, 47 S. Ct. 478, 71 L. Ed. 787]. Thereupon he was again brought to trial and convicted. Prior to the second conviction the sufficiency of the indictment was not questioned. Where a defendant has not attacked the indictment until after a second conviction and until the statute of limitations has prevented reindictment, a motion in arrest of judgment should be sustained only in a case where the court is free from any doubt. The remark to this effect is perhaps a work of supererogation in view of the decision in Rulovitch v. United States, supra.
"The motion in arrest of judgment will be overruled."
Max V. Schoonmaker and Aaron M. Jaffe, both of Pittsburgh, Pa., for appellant.
John D. Meyer, U.S. Atty., and Joseph A. Richardson, Asst. U.S. Atty., both of Pittsburgh, Pa.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
The judgment of the court below is affirmed on its opinion refusing to arrest judgment.
It is further ordered that the mandate go down in 15 days from this date, November 9, 1928.