POLLOCK v. UNITED STATES, 35 F.2d 174

NORTHCOTT, Circuit Judge. This is an appeal by David Polloek, the defendant below, from a judgment of the District Court of the United States for the District of Maryland, at Baltimore, entered on the 22d day of December, 1928, imposing sentence of two years’ imprisonment in the United States Penitentiary at Atlanta.

The defendant was found guilty on the third count of an indictment, charging him with conspiring with one James Morsell and other persons unknown, to obstruct and impede the due administration of justice in the District Court of the United States for the District of Maryland in the matter of the apprehension and trial of said Morsell, then and there a defendant in said court, charged with a conspiracy to violate the National Prohibition Act.

The first count charged conspiracy to procure the said Morsell to leave the jurisdiction of the District Court of the United States for the District of Maryland, and remain away. The second count charged the procurement of said Morsell to leave said district, and the third count charged the conspiracy to procure the said Morsell to remain away from said district. The verdict of the jury was not guilty as to the first and second counts. ; A distillery, at Tannery, Carroll county, Md., was robbed on January 2, 1926, and growing out of that robbery an indictment was returned on April 29, 1926, against James M.

Geisey, Harvey Jones, Milton Hawkins, Harry Bessick, George Bowden, and the defendant James Morsell. This case was numbered 9060 on the docket of the court. On May 9,1926, a bench warrant was issued for the arrest of Morsell, but this warrant was not executed until September 23,1928. It appears that at the time of the returning of this indictment against Morsell he was already on bail in connection with a violation of the National Prohibition Act, ease No. 8088, the bail bond being forfeited on May 7,1926. The case under the indictment of April 29, 1926, No. 9060, was tried on June 5, 1928.

At that time only James M. Geisey, Harvey Jones, and (Milton Hawkins were tried; the other defendants, including James Morsell, being at large. The trial was concluded on June 8, 1928, the jury disagreeing. Morsell was apprehended in Philadelphia, on September 22, 1928. The record shows that he had been living there, certainly since June 9,1928, under the name of James Williams or James Brown.

Defendant Pollock, together with his brother, Harry Pollock, conducted a garage in the city of Baltimore, and the defendant was convicted in November, 1928, of conspiracy to transport intoxicating liquors in violation of the National Prohibition Act (27 USCA). This charge grew out of robbery of the distillery at Tannery. A truck used in the robbery was afterward located at the Pollock Garage, and the title to that truck and another truck had been taken out by the defendant David Pollock under assumed names.

The defendant Pollock under the name of Jake Cohen, repeatedly sent money to the defendant Morsell, while Morsell was living under an assumed name in Philadelphia, and on June 9, 1928, defendant Polloek wired Morsell to “stay until I send for you.” One Brown, a colored man, who was a friend of Morsell, who was also a colored man, testified that he acted as a go-between between Morsell and defendant Pollock through another man in securing money for Morsell, while the latter was in Philadelphia. Neither defendant took the stand, at the trial.

There are seventeen assignments of error, the first of which relates to the action of the court in overruling defendant’s demurrer to the indictment. We are of the opinion that the indictment was sufficient in form. “The. rules of criminal pleading do not require the same degree of detail in an indictment for conspiracy in stating the object of the conspiracy as if it were one charging the substantive offense.” Thornton v. United States, 271 U. S. 414, 46 S. Ct. 585, 70 L. Ed. 1013. To the same general effect see Fletcher v. United States, 42 App. D. C. 53; United States v. Celia, 37 App. D. C. 423; Williamson v.

United States, 207 U. S. 425, 28 S. Ct. 163, 52 L. Ed. 278. The case of Pettibone v. United States, 148 U. S. 197, 13 S. Ct. 542, 37 L. Ed. 419, relied upon by the appellant, is clearly distinguishable from the instant case. Had this indictment charged appellant with conspiracy with a defendant in a criminal ease, and not included others, a different case would be presented, but in this case the grand jurors charged the defendants with conspiracy together with other parties unknown, and the evidence elearly shows that other parties were involved in the conspiracy.

We are of the opinion that the indictment properly charges a crime. The second assignment of error relates to the action of the court in overruling defendant’s plea of former jeopardy, or, more properly speaking, former conviction, it being claimed that the defendant’s conviction for conspiracy, in the distillery ease, being based upon the same evidence that would be necessary to convict him of conspiring to induce Morsell to remain out of the jurisdiction of the court, the conviction would therefore constitute former jeopardy or former conviction.

The conspiracy to transport the liquor from the robbed distillery was an entirely separate and distinct ofíense from that charged in this ease, and the former conviction did not constitute former jeopardy. Assignments of error 3, 4, 5, 6, and 7 relate to the action of the court in the admission of evidence, and we find no error in connection therewith.

The assignment of error No. 8 relates to the action of the court in refusing the defendant’s first and second prayers for instruction, but we are of the opinion that they were properly refused, and that the subject-matter of these prayers was substantially and correctly covered in the charge of the trial court. Assignments of error 9,10,11,12,13, and 14 also relate to the admission of certain evidence and the refusal of the court to admit other evidence, but upon examination we are of the opinion that the action of the court in each instance was correct.

Assignment of error 15 relates to the action of the court in overruling the defendant’s five special exceptions to the court’s charge to the jury, but we find that these special exceptions were properly overruled. The sixteenth assignment of error relates to the action of the court in overruling defendant’s objection to statements of the United States attorney in his closing argument to the jury. These statements were made with reference to the prior conviction of the defendants Pollock and Morsell, and this question has been given by us careful consideration.

Prom the beginning of the trial, attorneys for the defendant Pollock repeatedly endeavored to get the record of the former conviction before the jury, especially for the purpose of supporting the plea of former conviction, and, while it is true that the court did refuse to admit the record of the former conviction, for that purpose, yet the court found as a fact that both sides had repeatedly referred to the former conviction during the course of the trial, and refused to exclude the remarks of the United States attorney.

We do not see how defendants could possibly have been prejudiced by these remarks, even admitting they were not proper. The defendant’s own counsel had made statements referring to the same subject-matter; had repeatedly endeavored to get the former conviction before the jury, and had made the refusal of the court to admit the record of the former conviction the subject of an assignment of error (assignment of Error No. 12). The statement made by the United States attorney was not made in any unfair or vicious manner, an,d was simply a statement of a faet admittedly true.

The error, if any, in permitting the statement complained of, was, in view of the overwhelming evidence against him, without prejudice to the defendant, and was therefore harmless. Honeycutt v. United States, 277 F. 941 (C. C. A. 4th Cir.); Carpenter v. United States, 280 F. 598 (C. C. A. 4th Cir.). See Assaid v. United States, 10 F.(2d) 752 (C. C. A. 4th Cir.). The case presented here is entirely different from that of New York Central Railroad Co. v. Johnson, 279 U. S. 310, 49 S. Ct. 300, 73 L. Ed. 706. In the Johnson Case the remarks of the attorneys were, in the language of Mr.

Justice Stone, speaking for the court, “bitter and passionate,” and “tended to excite prejudice.’’ No such situation is shown by the record here. The defendant had a fair trial; there was no prejudicial error; and the judgment of the court below is accordingly affirmed.