The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
At the trial certain rulings were made with respect to the admission of testimony. The Court stated that a formal opinion would be filed, hence this opinion.
The defendants James De Simone and Josephine De Simone, husband and wife, respectively, and other defendants were indicted by the Grand Jury charging them with a conspiracy to set up a still on the Herth Farm, South Country Road, Bellport, Suffolk County, New York, to set up a still at 1268 Duntan Avenue, East Patchogue, Suffolk County, New York, and to set up a still at 16 South Milburn Avenue, Baldwin, Nassau County, New York, and to commence business of distillers without filing notice of such intention, to make and ferment mash fit for distillation for the production of spirits and alcohol, and to unlawfully possess quantities of distilled spirits in immediate containers to which there were affixed no Internal Revenue stamps.
James De Simone had previously been indicted in this Court charged with the possession of the still set up at 16 South Milburn Avenue, Baldwin, Nassau County, New York, which is one of the stills referred to in this indictment. Upon the trial of James De Simone under indictment No. Cr. 37646 it was decided by the Court that the search of 16 South Milburn Avenue, Baldwin, Nassau County, New York, and the seizure of the still, mash, distilled spirits and other property mentioned in this indictment was illegal, thereupon a judgment was entered dismissing said indictment No. Cr. 37646. Indictment No. Cr. 37646 contained substantive counts but no conspiracy count. The United States Attorney was therefore not precluded from prosecuting the defendant James De Simone for the crime of conspiracy to possess the still set up, mash and distilled spirits, and to commence the business of distiller without filing notice of such intention, even though the indictment for the substantive counts had been dismissed, for the reason that a conspiracy to possess a still set up, mash and distilled spirits, and to commence business as a distiller without filing notice of such intention could exist without showing the possession of the still, mash and distilled spirits and that the defendant commenced the business of a distiller without filing notice of such intention. All that need be proven to make the conspiracy complete was the unlawful agreement between two or more persons to possess the still set up, mash and distilled spirits, and the performance of one or more Overt Acts in furtherance of the conspiracy.
On the trial of this action the United States Attorney offered testimony of the Alcohol Tax Agents who had made the search and seizure which the Court in the indictment No. Cr. 37646 decided was illegal. Such testimony was excluded upon the ground that the judgment of acquittal rendered upon the merits and the decision that search and seizure was illegal was conclusive of the rights of the parties. This decision was not based upon the doctrine of double jeopardy but upon res judicata, or, perhaps stating it more precisely, the doctrine of estoppel. See United States v. Oppenheimer, 242 U.S. 85, 87, 37 S. Ct. 68, 69, 61 L. Ed. 161, 3 A.L.R. 516, in which the Court decided:
"Upon the merits the proposition of the government is that the doctrine of res judicata does not exist for criminal cases except in the modified form of the 5th Amendment, that a person shall not be subject for the same offense to be twice put in jeopardy of life or limb; and the conclusion is drawn that a decision upon a plea in bar cannot prevent a second trial when the defendant never has been in jeopardy in the sense of being before a jury upon the facts of the offense charged. It seems that the mere statement of the position should be its own answer. It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt. It cannot be that a judgment of acquittal on the ground of the statute of limitations is less a protection against a second trial than a judgment upon the ground of innocence, or that such a judgment is any more effective when entered after a verdict than if entered by the government's consent before a jury is empaneled; or that it is conclusive if entered upon the general issue (United States v. Kissel, 218 U.S. 601, 610, 31 S. Ct. 124, 54 L. Ed. 1168, 1179), but if upon a special plea of the statute, permits the defendant to be prosecuted again. We do not suppose that it would be doubted that a judgment upon a demurrer to the merits would be a bar to a second indictment in the same words, State v. Fields, 106 Iowa 406, 76 N.W. 802; Whart.Crim. Pl. & Pr., 9th Ed., § 406.
"Of course, the quashing of a bad indictment is no bar to a prosecution upon a good one, but a judgment for the defendant upon the ground that the prosecution is barred goes to his liability as matter of substantive law, and one judgment that he is free as matter of substantive law is as good as another. A plea of the statute of limitations is a plea to the merits (United States v. Barber, 219 U.S. 72, 78, 31 S. Ct. 209, 55 L. Ed. 99, 101), and however the issue was raised in the former case, after judgment upon it, it could not be reopened in a later prosecution. We may adopt in its application to this case the statement of a judge of great experience in the criminal law: 'Where a criminal charge has been adjudicated upon by a court having jurisdiction to hear and determine it, the adjudication, whether it takes the form of an acquittal or conviction, is final as to the matter so adjudicated upon, and may be pleaded in bar to any subsequent prosecution for the same offense. * * * In this respect the criminal law is in unison with that which prevails in civil proceedings.' Hawkins, J. in Reg. v. Miles, L.R. 24 Q.B. Div. 423, 431. The finality of a previous adjudication as to the matters determined by it is the ground of decision in Com. v. Evans, 101 Mass. 25, the criminal and the civil law agreeing, as Mr. Justice Hawkins says. Com. v. Ellis, 160 Mass. 165, 35 N.E. 773; Brittain v. Kinnaird, 1 Brod. & B. 432, 129 Eng. Rep. 789, 4 J.B. Moore, 50, Gow, N.P. 164, 21 Revised Rep. 680. Seemingly the same view was taken in Frank v. Mangum, 237 U.S. 309, 334, 35 S. Ct. 582, 59 L. Ed. 969, 983, as it was also in Coffey v. United States, 116 U.S. 436, 445 , 6 S. Ct. 437, 29 L. Ed. 684, 687."
See, also, Coffey v. United States, 116 U.S. 436, 6 S. Ct. 432, 29 L. Ed. 681; Stone v. United States, 167 U.S. 178, 17 S. Ct. 778, 42 L. Ed. 127; Murphy v. United States, 272 U.S. 630, 47 S. Ct. 218, 71 L. Ed. 446; Helvering v. Mitchell, 303 U.S. 391, 58 S. Ct. 630, 82 L. Ed. 917.
It would, indeed, be a sad commentary on justice if a Court should permit the prosecution to prove facts excluded by a Court of coordinate jurisdiction where the same defendant is charged with a crime.
A very interesting, instructive, and well-considered editorial on the subject, "Res Judicata With Respect to Criminal Judgments", appeared in the New York Law Journal on December 18th, 19th and 20th, 1939, the author of which was Harry G. Anderson, Esq., of the New York Bar. Mr. Anderson aptly points out the distinction between former jeopardy and res judicata, as follows:
"The doctrine of res judicata, as generally stated, is that a final judgment rendered upon the merits by a court of competent jurisdiction is conclusive of the rights of the parties, or their privies, in subsequent actions, with respect to the points in issue which have been determined in the earlier litigation. Good Health Dairy Products Corp. v. Emery, 275 N.Y., 14, 17 [9 N.E.2d 758, 112 A.L.R. 401]. Implicit in this doctrine is that the estoppel must be mutual, that is, a party will not be concluded against his contention by a former judgment unless he could have used it as a protection had the judgment been the other way. Conversely, no person can claim the benefit of a judgment as an estoppel unless he would have been prejudiced by a contrary judgment or decision. Black on Judgments (2d Ed.), vol. 2, sec. 548. In the more recent cases there has been a relaxation of the rule of mutuality, but the courts have found it difficult to classify the exceptions. Good Health Dairy Products Corp. v. Emery, supra; Liberty Mutual Ins. Co. v. Colon & Co., 260 N.Y. 305, 311, [183 N.E. 506]. The res judicata rule has been extended to cases where the relationship established between the defendants in the earlier and subsequent litigations has been that of principal and agent, master and servant, indemnitor and indemnitee. Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U.S. 111, 127, [32 S. Ct. 641, 56 L. Ed. 1009, Ann.Cas.1913E, 875]. Other than in these exceptional cases the requirement of mutuality remains an element of the rule. Schindler v. Royal Ins. Co., 258 N.Y. 310, 313 [179 N.E. 711, 80 A.L.R. 1142].
"The courts have frequently referred to the principle of res judicata in criminal cases. In transplanting the doctrine, however, to criminal law the requirement of mutuality had to be abandoned. A prior adjudication with respect to an element of a subsequently tried offense is not binding upon the accused. This is so because the defendant, charged with crime, always has the right to have the jury or the triers of the facts determine anew every element of guilt. People v. Kief, 126 N.Y. 661, 663, [27 N.E. 556]; People v. Walker, 198 N.Y. 329, 334, [91 N.E. 806]. For this reason doubt has been expressed as to whether the doctrine known to the civil law as res judicata is applicable to criminal cases. People v. Rohrs, 49 Hun. 150, 151 [1 N.Y.S. 672].
"In a more precise sense the rule of res judicata as applied in civil law cannot be said to have an exact counterpart in criminal law. There is, however, a rule of estoppel in criminal law akin to res judicata. As thus used it is a 'rule of evidence' which accords to the accused the right to claim finality with respect to a fact or group of facts previously determined in his favor upon a previous trial.
"There is, however, a distinction between former jeopardy and res judicata, although the application of these principles is sometimes confused. People v. Rodgers, 184 App.Div. 461 [171 N.Y.S. 451], affirmed 226 N.Y. 671, [123 N.E. 882]. The right to assert the claim of former jeopardy is guaranteed by the constitution, New York State Constitution, Art. I, sec. 6, which is also embodied in a statutory provision. Code of Criminal Procedure, sec. 9. To invoke the claim of former acquittal the accused must show that the prior offense was the same in law and in fact as that involved in the subsequent prosecution. 'The plea will be vicious, if the offenses charged in the two ...