within the court's discretion to admit it, even though properly a part of the government's evidence in chief. 5. Criminal law 599-Defendants held not surprised, and not entitled to continuance of one day at close of government's case. On a trial for conspiracy to violate the National Prohibition Act, defendants held not surprised by the government's testimony, and hence the denial of a continuance for one day at the close of the government's testimony was not error, especially where the court did take a short recess, and the defendants produced a witness who left the impression that further delay was unjustifiable. 6. Criminal law ficient. 510-Uncorroborated testimony of accomplice may be suf A conviction may rest on the uncorroborated testimony of an accomplice. 7. Criminal law 762 (3)-Expression of opinion as to sufficiency of accomplice testimony should depend on testimony. If a requested instruction advising the jury that a conviction should not rest upon the unsupported testimony of accomplices was intended merely as an expression of the court's opinion of the weight to be given such testimony, it was within the trial court's judgment whether such expression of opinion should be given or not, and in expressing such opinion he should be guided by the testimony in the particular case rather than by any general rule. 8. Criminal law 720 (1) -Argument that alibi was "faked alibi" not improper; "fake." Where it was the contention of the government that witnesses testifying to an alibi were either mistaken or testified falsely, it was not improper for counsel for the government in his argument to refer to the alibi as a faked alibi, since "fake" means to make or construct, and a “faked alibi” is a made, manufactured, or false alibi. [Ed. Note. For other definitions, see Words and Phrases, Second Series, Fake.] 9. Criminal law 723 (5)-Not court's province to determine appropriate. ness of counsel's characterization of defendant. It was not for the court to determine the wisdom or appropriateness of counsel's characterization of defendant as a "Shylock," but merely to determine whether there was any evidence to justify the argument, especially where the court told the jury to disregard the entire statement, on defendant's counsel insisting that the statement reflected on defendant's race and religion. 10. Criminal law 919 (3)—Argument not ground for new trial, when in part supported by evidence and in part characterized by court as improper. Argument of counsel for the government that defendant was meek and humble on the stand, and was not the same man that threatened F. with death in a certain station, or the same "king of the underworld," who with a snap of his fingers held the lives of men in his grasp, did not require a new trial, where there was testimony that defendant did threaten F. with death in such station, and the court charged that the statement that defendant was king of the underworld and held the lives of people in the snap of his fingers was improper. 11. Criminal law 919 (3)-Argument held not ground for new trial, where court charged jury not to consider anything outside the record. The argument of counsel for the government, if made as claimed, that defendant could swim in the tears he had caused, if gathered in one reservoir, did not require a new trial, where the court, who did not hear such argument, referred to the claim that it was made, and admonished the jury that anything outside the record was not proper. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (274 F.) Michael Heitler and others were convicted of conspiracy to commit an offense, and they move for a new trial. Motion denied. James R. Glass and John J. Kelly, both of Chicago, Ill., for the United States. Weymouth Kirkland, of Chicago, Ill., for defendant. Motion for a New Trial. EVAN A. EVANS, Acting .District Judge. Several grounds are presented as the basis for a new trial. Earnestly argued and supported by a brief evidencing study and thought, the disposition of the motion calls for an expression of the court's reasons for overruling it. Variance Between Pleading and Proof. The indictment charges the defendants therein named with having conspired "with divers other persons to said grand jurors unknown,' etc. Certain offered, but rejected, evidence would, it is claimed, have shown that the names of such persons were known to the grand jurors. This, it is claimed, was a fatal variance, and numerous cases are cited to support this position. United States v. Riley (C. C.) 74 Fed. 210; Naftzger v. United States, 200 Fed. 501, 118 C. C. A. 598; Cooke v. People, 231 Ill. 9, 82 N. E. 863; State v. Smith, 89 N. J. Law, 52, 97 Atl. 780; Mitchell v. United States, 229 Fed. 357, 143 Č. C. A. 477. In opposition, the following may be cited: Jones v. United States, 179 Fed. 584, 593, 103 C. C. A. 142; People v. Smith, 239 Ill. 91, 108, 87 N. E. 885; People v. Mather, 4 Wend. (N. Y.) 229, 21 Am. Dec. 122, 152. The two decisions, Jones v. United States, 179 Fed. 584, 103 C. C. A. 142, and People v. Smith, 239 Ill. 91, 87 N. E. 885, respectively, admittedly support the court's ruling, while the decision of Judge Taft in United States v. Riley (C. C.) 74 Fed. 210, cited and chiefly relied upon by defendants, may at least be distinguished by the fact that it was not a case involving a conspiracy prosecution. Ruling Case Law, while citing but one case, announces this rule of law to be as the court applied it. 14 R. C. L. 182, 183. [1] But, ignoring the cases and such distinction for the moment, I am not impressed with the reasonableness of a rule that, without qualification, recognizes a fatal variance between an indictment which alleges on the part of the grand jury an absence of knowledge of the names of others participating in a conspiracy and proof that certain of such other persons were known to the grand jurors and may have been, in some manner, connected with the conspiracy. Better reasoning, it seems to me, requires me to go back to the constitutional provision to ascertain the requirements of an indictment, and to test the sufficiency of the charge by the essentials therein provided; in other words, determine whether the defendants are informed with such certainty as to the nature and cause of the accusation against them as to permit each, assuming his innocence, to properly prepare for trial. If the accused is so informed, the indictment is sufficient; if not, it fails, not because of variance, but because of the requirements of the Constitution, the Sixth Amendment of which reads: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." The rule was laid down in Cochran v. United States, 157 U. S. 286, 15 Sup. Ct. 628, 39 L. Ed. 704, as follows: "The true test is, not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction." It would require no stretch of the imagination to conceive of a charge which, assuming that a defendant is innocent, would be insufficient in view of the therein contained false or inaccurate allegations that another party not indicted is to the grand jury unknown. Likewise it would be equally easy to imagine a case where the name or names of "divers other persons" would not be helpful to the defendants. Testing the indictment by these tests, we find nothing suggestive of deception. There is nothing which would mislead any defendant. Some 31 are named as conspirators. The means are set out with sufficient particularity, and the various overt acts give dates, places, and names with so much particularity that no defendant could possibly claim that he was taken by surprise by any of the testimony offered by the government. From this indictment it appears that a carload of whisky, containing 1,000 cases, was, pursuant to the conspiracy to which the 31 defendants and others were parties, purchased from the Old Grandad Distillery Company of Louisville, Ky., and by means of a false and forged permit shipped to Chicago, to be there distributed among the smaller bootleggers or dealers, who, in turn, acted as the spokesmen or representatives of still smaller bootleggers. The serial numbers on the various cases of whisky appear, the route which the car took is given, and the date of the arrival of the car in Chicago. The date of the reconsignment of the car at Peoria, Ill., also appears. The false permit which the shipper used to secure the shipment of the whisky was a matter of record. The books and records of the distillery company were accessible to the defendants. In fact, it seems to the court that the allegations were sufficient to apprise each defendant, innocent or guilty, of sufficient information to permit him to meet every issue. True, the names of Joy, Miller, Fitz Patrick, Frank, and others do not appear as coconspirators. Neither is it charged that those young chauffeurs, who drove the trucks containing the whisky from the cars to the place of destination, were coconspirators. Many others, who at this time might be mentioned, were not named as conspirators; for instance, the railroad detectives, the police officers, present in abundance at the car, certain railroad employees, to say nothing of many others who contributed their cash to make up the $135,000 alleged to be paid to Heitler, Perlman, and Greenberg. Per (274 F.) haps some of them were the "divers other persons to the grand jury unknown." But, conceding for the moment that these parties were coconspirators and that their names were known to the grand jury, was it necessary, in view of what had been set forth in the indictment, to name them as coconspirators, in order that defendants might fully understand the charges which they were to meet. I think not. But did the grand jury know the names of other conspirators? It may be true that they knew the names of Joy, Miller, Fitz Patrick, and Mickey Frank; but were they in a conspiracy? Or did they merely violate the National Prohibition Act? Vastly different are the two offenses. This was clearly illustrated on the trial. Numerous defendants were dismissed, not because the evidence failed to establish a criminal case against them, but because it failed to establish the offense of conspiracy against them. The jury likewise acquitted six defendants, not necessarily because they were not guilty of some crime, but because they were not in the conspiracy charged in the indictment. In view of the hours which counsel devoted to the argument on this very distinction, it is hardly necessary to review the evidence. [2] Must this court, then, become a reviewing court to determine what the evidence before the grand jury established? And this brings me to a consideration of the difference between a conspiracy charge and a criminal offense, such as was considered in the opinion in the Scott Case. To establish a conspiracy to violate a certain criminal statute, the evidence must convince a jury that defendants did something other than participate in the substantive offense which is the object of the conspiracy. To illustrate, A., B., and C. may each have purchased this whisky from D., E., and F. and may have carried it from the freight car in which it arrived, yet not have been in the conspiracy to which D., E., and F. were parties. How can the grand jury's conclusion, necessarily based in part upon their personal observation of witnesses, be reviewed? Can their finding be impeached? If so, can it be impeached by the fact that one or two of the many witnesses who testified before the grand jury also testified upon this trial, and gave counsel or the court an impression which may not have been obtained by the grand jury? I think clearly such review would be unwarranted; not only unjustifiable in law, but impossible in fact. Take, for instance, the witness Joy, whom the defense now claims to have been in the conspiracy (though at the same time denying that their clients, whom Joy's testimony involves, are in the conspiracy). He was the subject of a long, well-prepared, and skillfully directed cross-examination. Under the attack, he was restive, defiant, and bellicose. May not the impression of his testimony and appearance before the grand jury have been entirely different, though his story was substantially the same? That he violated the National Prohibition Act (41 Stat. 305) may be conceded. That his testimony before the grand jury was the same as upon this trial may also be admitted; but it by no means follows that the grand jury believed he was in the con spiracy charged in the indictment. And what has been said of Joy applies, of course, with even greater effectiveness to the many others. [3] While this might well dispose of the matter, still another reason is suggested for adhering to the view which the court took on the trial. This reason applies with force where the number of conspirators runs into the hundreds. There is no requirement in law that all conspirators be joined in any single indictment. Such as may well be tried in one case should only be named as defendants in any one indictment. The present trial convinced the court that 30 defendants is a large number to try at one time. But the testimony indicated that a jury might (though not necessarily) have found that the number implicated in this conspiracy was several hundred. Having concluded to limit the number to 31, was the grand jury required to investigate and ascertain who the others were and to name them? Must all the facts as to those not in the indictment be investigated, to judicially determine whether each was or was not in the conspiracy, notwithstanding they are to be named in another indictment? Must the grand jury, upon a partial investigation, name some of them as co-conspirators, though not as defendants? Fairness to such "other divers persons" not named as defendants, I think, requires the grand jury to hesitate before naming them in such a manner as to impair their reputation without at the same time affording to each a prompt opportunity to exonerate himself. While the argument in support of the alleged variance was based upon the offered testimony of Joy and of grand jurors, who, it is claimed, would testify that Joy appeared and gave testimony before them, it seems to me that failure to name others than Joy would be as fatal as failure to name Joy. But counsel has directed his argument to the failure of the grand jury to name Joy as one of the "divers other persons," and it is apparent as to him that defendants were fully advised concerning his story even before the government began its investigation. When the police officers were making their so-called investigation, and were examining various witnesses-in fact, any and all witnesses, excepting Heitler and Perlman and various policemen. charged with participation in this crime-the defendants learned, if they did not already know, that they were charged by Joy, Miller, Frank, and others with having conceived this conspiracy and carried it out substantially as these witnesses stated upon the witness stand. If the purpose of an indictment be to apprise the defendants of the nature and character of the charge, so that each defendant, be he innocent or guilty, may prepare adequately for trial, then the failure of the grand jury to name Joy or any other person was not fatal in this case. [4] Did the court err in permitting witnesses to testify on rebuttal and in refusing to grant a day's continuance after the government's testimony closed? Both because it was rebuttal and because it was within the court's discretion to admit it, though properly a part of the government's evidence in chief, I think no error was committed in receiving testimony offered by the government on rebuttal. The govern |