1. After entry of a plea of
nolo contendere to an
indictment charging conspiracy unlawfully to transport intoxicating
liquors in violation of the National Prohibition Act, a stipulation
of facts filed by a
Page 281 U. S. 620
defendant and received by the trial court merely as evidence for
its information in determining what sentence should be imposed is
ineffective to import an issue as to the sufficiency of the
indictment, or an issue of fact upon the question of guilt or
innocence. P.
281 U. S.
622.
2. If the stipulation be regarded as adding particulars to the
indictment, it is void under the rule that nothing can be added to
an indictment without the concurrence of the grand jury by which
the bill was found.
Id.
3. Regarded as evidence upon the question of guilt or innocence,
the stipulation came too late, for the plea of
nolo
contendere, upon that question and for that case, was as
conclusive as a plea of guilty would have been. P.
281 U. S.
623.
4. After a plea of
nolo contendere, nothing remains for
the court but to render judgment, as no issue of fact exists and
none can be made while the plea remains of record.
Id.
34 F.2d 839, reversed.
Certiorari,
post, p. 707, to review a judgment of the
circuit court of appeals which reversed a judgment of the district
court, 29 F.2d 744, sentencing the respondent after a plea of
nolo contendere to an indictment charging conspiracy to
transport intoxicating liquors in violation of the National
Prohibition Act.
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
Norris and one Kerper were indicted by the federal grand jury
for the Eastern District of Pennsylvania, charged in two counts
with conspiring unlawfully to transport
Page 281 U. S. 621
and cause to be transported, from Philadelphia to New York,
certain shipments of intoxicating liquor, in violation of the
National Prohibition Act of October 28, 1919, c. 85, § 3, 41 Stat.
305, 308, U.S.C., Title 27, § 12. The indictment is sufficient in
form and substance. Kerper pleaded guilty, and Norris entered a
plea of
nolo contendere. When the latter appeared for
sentence, there was filed a stipulation of facts which it was
agreed should be taken to be true and of record with like effect as
if set forth in the indictment. The pertinent portion of the
stipulation is copied in the margin.
* Thereupon,
Norris submitted in arrest of judgment upon the grounds
Page 281 U. S. 622
that, upon the face of the record, he was not guilty of the
crime charged; that the record disclosed that he merely purchased
liquor, and that this did not constitute a crime, and that the
record failed to show such degree of affirmative cooperation on his
part as would render him liable as a conspirator in the unlawful
transportation. The motion was denied, and judgment rendered
against Norris, who was, thereupon sentenced to pay a fine of $200.
The district court treated the stipulation as "evidence . . . for
the information of the court in determining what sentence, if any,
ought to be imposed upon the defendant Norris," which it "received
and made part of the record for the limited purpose above stated."
United States v. Kerper, 29 F.2d 744, 745. The court of
appeals sustained the sufficiency of the indictment, but,
considering the case upon the stipulation of facts, reached the
conclusion that the transactions therein disclosed did not subject
the purchaser and seller of intoxicating liquor to an indictment
for conspiracy to transport, and reversed the judgment of the trial
court.
Norris v. United States, 34 F.2d 839.
In the face of an indictment good in form and substance, and of
a plea thereto of
nolo contendere, which, although it does
not create an estoppel, has all the effect of a plea of guilty for
the purposes of the case (
Hudson v. United States,
272 U. S. 451,
272 U. S. 455;
United States v. Lair, 195 F. 47, 51), the stipulation was
ineffective to import an issue as to the sufficiency of the
indictment, or an issue of fact upon the question of guilt or
innocence. If the stipulation be regarded as adding particulars to
the indictment, it must fall before the rule that nothing can be
added to an indictment without the concurrence of the grand jury by
which the bill was found.
Ex parte Bain, 121 U. S.
1. If filed before plea and given effect, such a
Page 281 U. S. 623
stipulation would oust the jurisdiction of the court.
Id., p.
121 U. S. 13,
citing (at pp.
121 U. S. 8-9)
Commonwealth v. Mahar, 16 Pick. 120, and
People v.
Campbell, 4 Parker's Cr.Cases 386, 387, holding that the
defendant's consent does not affect the rule. After the plea,
nothing is left but to render judgment, for the obvious reason
that, in the face of the plea, no issue of fact exists, and none
can be made while the plea remains of record. Regarded as evidence
upon the question of guilt or innocence, the stipulation came too
late, for the plea of
nolo contendere, upon that question
and for that case, was as conclusive as a plea of guilty would have
been. And, as said by Mr. Justice Shiras in
Hallinger v.
Davis, 146 U. S. 314,
146 U. S.
318:
"If a recorded confession of every material averment of an
indictment puts the confessor upon the country, the institution of
jury trial and the legal effect and nature of a plea of guilty have
been very imperfectly understood, not only by the authors of the
constitution and their successors down to the present time, but
also by all the generations of men who have lived under the common
law."
The court was no longer concerned with the question of guilt,
but only with the character and extent of the punishment.
People ex rel. Hubert v. Kaiser, 206 N.Y. 46, 51, 52, 99
N.E. 195. The remedy of the accused, if he thought he had not
violated the law, was to withdraw, by leave of court, the plea of
nolo contendere, enter one of not guilty, and, upon the
issue thus made, submit the facts for determination in the usual
and orderly way.
As to whether the stipulated facts, if open to consideration,
make out a case of criminal conspiracy, we express no opinion.
The judgment of the court of appeals is reversed, and that
of the district court affirmed.
*
"Defendant, Alfred E. Norris, resides at 55 East Seventy-second
Street, New York City. His business is that of investment
banker."
"Joel D. Kerper, the other defendant, for some years prior to
the date of the indictment in the above case conducted at premises
known as 341 Walnut Street, Philadelphia, Pa. a business consisting
in major part of the sale and transportation incidental to sale, of
intoxicating liquors, in violation of the National Prohibition Act.
Pursuant to said business, the said Joel D. Kerper supplied a large
number of customers in Philadelphia, New York, and other places. In
the course of his business conducted as aforesaid, the said Joel D.
Kerper, on the dates indicated, made the following shipments by
prepaid express from Philadelphia to the said Alfred E. Norris,
addressed to him at 55 East Seventy-second Street, New York City.
These shipments were labeled as containing the merchandise
indicated in each case, and purported to be sent by the shippers
named:"
[The list is omitted.]
"In all of the above cases, defendant, Joel D. Kerper, was the
true shipper, instead of the fictitious shipper named, and in every
instance the package contained an unlawful shipment of intoxicating
liquor for beverage purposes; to-wit: rye whiskey. Said shipments
were made by defendant, Joel D. Kerper to defendant, Alfred E.
Norris, to fill orders for rye whiskey given by said Alfred E.
Norris to said Joel D. Kerper over the telephone. Payment for said
rye whiskey was made from time to time by Norris to Kerper either
in cash or by check. The said rye whiskey was purchased by
defendant, Alfred E. Norris, for his own consumption or that of his
guests, and he was in no sense a dealer of liquor."