*1
83
validly
liability
these acci- not
slow down. After none of
contract
pro-
inspection
negligence,
dents
made of
own
Bisso
Inland
v.
peller
Waterways
85,
Corporation,
sink-
shaft and the result
75
U.S.
ings
by
pro-
629,
911,
hub of the
was hidden
S.Ct.
carriers
common
peller.
by
may impose just
As held
this court
Lamb
limi-
and reasonable
914,
liability
Company,
upon
149 F.2d
Interstate S.
tation
S.
common-law
their
amounting
exemption
not
to an
negligence,
consequences of their own
injury complained of
“If
Queen
Pacific,
49,
U.S.
might
from
well have resulted
one
278,
419; Georgia,
45 L.Ed.
Florida &
many
upon
causes,
incumbent
it is
Railway Company
Mill-
Alabama
ing Co.,
v. Blish
produce
the libellant
evidence
36 S.Ct.
operation
which will
exclude the
fracture. The inference physical of the shaft supported appellant’s con
would not have Patton-Tully Transportation
tentions. Barrett, Cir., Co. v. JOLLEY, Appellant, also correct The court was Ap holding was barred. action provision pellant’s tariff claim that the America, UNITED STATES of gone because had not into effect Appellee. ready the dock not to leave steamer was No. 15502. by properly the District overruled Appeals Court United States Tug Arkansas Court. While the Circuit. Fifth moving oc when the accident the vessel April curred, to the summoned it had been together Thompson sec with a Steamer signified signal tug ond required the assistance the steamer tugs. When towline of two placed stern of Arkansas was Thompson, Thompson, the the Steamer meaning tariff, was be within the prepare ing Arkansas assisted dock. to leave par
Also claims
agraph public 16 of the tariff violates agree
policy, but we with the District provision is valid
Court and en may
forceable. aWhile towboat owner
§4 Henry Payton, Newnan, Ga., Stone- N. appellant. Atlanta, Ga., Dyer,
wall Atty., Read, Jr., Asst. U. S. Charles D. Atty., Dorsey, John W. U. James W. S. Atlanta, Stokes, Atty., Jr., S. Asst. U. Ga., appellee. RIVES, CAM- TUTTLE and Before Judges.
ERON, Circuit Judge. RIVES, Circuit appeals from a alone conspiracy1 judgment of conviction for tax sections of the laws2 to violate two possession, pertaining to the unlawful removal whiskey. concealment co-defendant, Charlie One appellant, Hollis, Frank was tried with According to and both were convicted. co-defendant, appellant’s brief, a third previously Jones, had entered Donald A. plea of The indict- nolo contendere. co-conspirators ment named as Holmes, men, dicted five other Norman Roy Roberts, Canion, J. R. Lemon West, and also Williams and Curtis W. party parties “a Jurors to the Grand alleged conspir- unknown.” It began acy August, 1951, contin- day day ued to the return February 17, 1954. indictment objects purposes To effect the conspiracy, the indictment co-conspirators defendants among numerous acts committed overt specified. dis- thirteen were charged jury there trict court prove al- substantial evidence leged 5, 8 and overt acts numbered 10. 2. 26 § §§ 18 U.S.C.A. U.S.C.A. owned another automobile briefly drove summarize will "We immediately front of him believe authorized remaining referred 1942 Ford automobile al- tending prove ten *3 paragraphs, preceding in the two leged overt acts. Ford was seized the time the said “That, on 1: Act No. gallons transporting of 108 while August in Fulton about non-tax-paid liquor.” Hugh Georgia, County, Jol- Albert in pos- that 1951 Albert E. Moon testified ley and bought gallons non-tax-paid from a 1942 Ford automobile of he 156 sessed whiskey, living Bearden, in Mari- Mr. who was whis- and transferred etta, Georgia; Stakebody that finance key he owed a Truck to from a 1941 designated company “North Coupe.” which he Ford a 1935 Company” American Loan some trial, beginning appel- At automobile; he advertised that lant’s counsel admitted newspaper in an Atlanta for the sale August, did, in and Willie answer, of the car received one and gallons non-tax-paid 1951, possess of 150 to whom he possession that such but denied car; sold the and he was connected with con- company went to the finance to have the spiracy. The introduced Government appellant’s car in refinanced name. Collins, testimony of James L. who told He further testified: having gone appellant’s in of home “ * * * along August, 1951, and with two other offi- we filled out the finding appellant’s papers, cers in his information and and there credit yard all, parked there and done and on truck about reference and he non-tax-paid whiskey, decided, 150 of he he didn’t want arresting appellant pay the interest on loan Roberts there- and we pleaded guilty my house, for. Both of had went back them over to and he Georgia said, he the offense of still wanted State and said arising just pay he from the same would acts. me cash for it then.” “That, Overt Act No. 2: on De- further, testified that the in Still Mr. Moon cember Fulton registration Georgia, Jolley pur- on the car left tax has been Albert Bearden, automobile, in the of Mr. the man chased a 1942 Ford name mo- purchased 18-6847486, tor whom car. from he had from E. Albert Moon.” Berry he that was testified A. A. Overt Act on No. 3: Jan- Manager Loan “American of Assistant uary 8, 1952, in Fulton Corporation”,3 in such Thrift Hollis Charlie Frank trans- custody the records capacity had ported automobile, in a 1942 Ford company; information that an paragraph pre- described in the produced, and which sheet ceding, non-tax-paid Govern as the in evidence introduced whiskey.” rec an official No. was Exhibit ment’s regular of busi kept course Jan- ord Overt Act No. Hugh Jolley on December uary 8, 1952, and showed ness emphasizes could Appellant the difference circumstances testifying company the witnesses this name of finance infer company. Company” the same finance re- about American Loan “North Moon, and witness ferred to pellee replies finance information sheet Moon had doubtless regular having memory detail, company lapse been had a years brought was admissible its business the several course tervening Duncan v. § evidence. 28 U.S.C.A. between the transaction there sufficient trial. Wo think company appellant’s employee that about 100 feet behind some application for loan on a barn found one-half took an non-tax-paid from Albert and further on Ford automobile two-door Jolley. from there in the same area found and Bertie H. 20 one-half Kinney that she Miss Inez testified house Li- in the Motor Vehicle file clerk gallons, closest one one-half Department Revenue Unit cense there were other houses closer to the- custody Georgia of the- files gallons; 20 one-half was no- there registrations vehicle of automobile *4 leading gallons path to the 20 half and produced the She State. just open pasture; the area was that he tag registration for a 1942 two- license know does not who owned the land on being tag ES-5700, Ford, number door was found. registered in C. the name Vester “That, Overt Act on or Georgia. Marietta, Bearden of August 29, 1952, about Charlie George Bradley testified that he was a Hollis, Frank J. R. Al- Williams and Trooper; on or State about Jan- Hugh Jolley bert to went the home uary between 7:30 and 8 o’clock County, Lemon Canion in Fulton morning, passed in highway he on Georgia, carrying large quanti- two automobiles driven ty non-tax-paid whiskey, and recog- apart 200 or 300 and had feet same, ‘stashed’ the near the house of nized the driver of the the said Canion.” automobile; that, passing lead after On or about officers cars, pulled he into a service station found Canion, near the home of Lemon passed, and waited until both cars had County not in Fulton over travelling at about the same distance Clayton County, line in Georgia, 4 one- apart; that he then fell in behind the gallons whiskey, half empty several got automobile, second waited until it to gallon jars, grave- cases of half and in a enough pull a shoulder wide off with- yard gallons back of his house or interfering traffic, out with sounded his whiskey, non-tax-paid. This house pulled siren and the automobile off on is distant from house seven- shoulder; jumped two men out by walking tenths of a mile and a mile escaped; ran and and four-tenths road. Lemon Can- gallons car contained 120 to 125 of non- vaguely ion testified so that the Govern- tax-paid whiskey; it was a 1942 plead entrapment by ment the witness. automobile, bearing Ford a 1951 Geor- According testimony, liquor gia tag, ES-5700. belonged to someone other than him- 6; “That, Overt Act No. on or self but he whom, did not know to August 26, 1952, about Albert identify person unable to per- or Hugh Jolley possessed 21 sons who had left the on his non-tax-paid whiskey near his house premises. Georgia.” in Fulton Sep- Act No. 9: on Thompson Hugh Jolley Earl testified W. Albert Officer tember August 26, 1952, County; Georgia, he and Officer on in Fulton ployed em- patrolling Old were National Curtis W. West make
Adams
Georgia
Highway
trip
about two miles from the
in an
to North
automo-
residence,
they
bring
stopped
pellant’s
back a load
bile and
tax-paid
of non-
when
liquor,
arranged
and Charlie Frank Hollis
D. A. Jones
accompa-
found to
Frank Hollis to
Charlie
ny
paid
expenses
one-half
of non-tax-
said West
contain
arresting
trip;
of such
and the said load of
brought
Hollis,
liquor
place
made further .in-
back
Jones
vestigations
to a
College
Park,
appellant’s premises;
Georgia,
near
and un-
11 :
on
Overt Act No.
loaded;
said Albert
and the
July 13, in
Fulton
thereupon
said
Jolley
directed the
Hugh Jolley
Georgia,
fur-
Hollis
deliver
said
West
Roy
a 1942
non-tax-paid
nished to Willie
three cases
Coupe
purpose
Point,
Ford
East
liquor
a customer
non-tax-paid
transporting
Georgia,
said Hollis
where the
the said Willie
arrested about
the said West
transported
morning.”
in said automobile
three o’clock
102%
on
Ellis
testified
Officer
Whitfield
whiskey on that date.”
September
at about
or about
night
Berry
Jack
testified that
stop-
A.M., he and another officer
2:30
ped
July 13, 1953,
other officers
of
stopped
he and
East
Street
car
Holcombe
Road
an automobile on Gordon
Point,
con-
and found
County, Georgia,
in Fulton
and arrest-
jars
non-
of fruit
tained
38%
ed Willie
Roberts. The car
tax-paid whiskey. In
car
Cur-
*5
driving
1942 Ford
Roberts was
was a
West,
driving, and
tis
who was
Charlie
and contained
of non-tax-
102%
the
Frank Hollis. West stated that
whiskey.
paid
whiskey was his and that Hollis had
nothing
Roy
They
do with it.
arrested
Willie
Roberts testified that
to
appellant
for
not Hollis.
he worked
the
as a me
West but
June,
chanic from about the middle of
pre-
Curtis West
testified that his
months;
for about two
that
the
nothing
vious statement that Hollis had
paid
week;
appellant
him
a
that
$40.00
whiskey
that,
false;
to do
the
with
was
July
he remembered
arrested on
hauling
fact,
whiskey
in
he was
the
for
13, 1953;
that at the
ar
time
the
appellant,
promised
pay
the
had
who
to
whiskey
he had
rest
102%
trip
him
$50.00
the
and had sent
whiskey
and that
the
and the automo
along
Frank Hollis
Charlie
him
show
belonged
bile
to him. The Government
way;
gas
paid
the
that Hollis
for the
pleaded entrapment by
witness;
that,
had
having
pre
the witness admitted
appellant
the
the
di-
unloaded
conflicting
statements,
vious
rected
return and
them to
take three
parts
claimed that
of such statements
Point,
trip
cases to East
were untrue.6
arrested;
appellant
were
Act
No. 12:
on Au-
agreed
caught, ap-
had
if he were
gust 4, 1953,
Roy
Willie
pellant
get
pay
his
would
his fine and
transported 30
of non-tax-
back,
for the witness “to take
ear
but
in Cobb
Geor-
appellant
rap”;
later
him
told
gia,
ain
1936 Ford
fur-
pay
did not have the
by
nished to him Albert
Jol-
fact,
pay
fine, in
did not
him the
ley.”
bought
$50.00,
tires
the car
but
Roy
costing
give
or Willie
Roberts was arrested on
and did
him two
$32.00
August 4, 1953, in an
in cash.5
automobile with
three dollars
upon
complaint
Roy
only
tlio
arrested
Appellant’s
Willie
newspaper pub-
perjury.
charge
The
No.
9 is
Curtis
proof
act
overt
by
us,
impeached
nor
another Gov-
is not before
lication
“was
West
any
jurors
course, however,
of the
Of
read
witness.”
shown
ernment
pass
it.
think that
was authorized to
influenced
We
alone
credibility
dis-
court did not abuse
of the witnesses.
district
its
refusing
to declare a mistrial.
cretion
Potash,
urges
Cir.,
States v.
district
See United
Further,
appellant’s
denying
54, 56.
motion
F.2d
court erred
publica-
prejudice
pub-
because of
has shown
for a mistrial
newspaper
Reynolds
of the action
lication. See
in a local
tion
attorney
prosecuting
having
whiskey.
evidence,
ap-
At the
close
County
acquit-
arrest was made in Cobb
“on
moved for a
oi
road”,
one-way
ground
a little
“it
tal
woods
there was
part,
affair for
most
fatal
charging
ruts
way
variance between the indictment
you
conspiracy
to follow
is about
had in the
one continuous
proof showing, according
of a
In
appel-
road”.
front Willie
Rob-
view,
conspiracies,
erts’ automobile
another
lant’s
two or more
got away.
and, further,
ground
As the officers came back
Queens
sufficiency
into the
Mill Road from
of the
evidence.
off, they
the little woods road took
parked
saw
necessary
was,
course,
It
probably
at a distance of
20 or
alleged conspirators
that each of the
be
yards
ap-
30
pellant
an automobile in which the
proof
crime,
connected
with the
persons
sitting;
and other
long
so
as the
himself
night.
the time was about 9 or 9:30 at
proved beyond a reasonable
doubt
be
Again,
Roberts claimed guilty
conspiracy.7
Nor
itwas
for which he was ar- necessary that the evidence establish the
rested on
1953 was his own
guilt
of each and all of the
whiskey and
declined to connect the
charged,
only
acts
overt
of the com
pellant with it.
mission of
one or
thereof to
more
objects
purposes
on or
Overt Act
effect the
August
conspiracy.8
Cobb
While the evidence
*6
appellant
the store of
as to some of the overt acts
Flynn,
weak,
was
Mrs. Mamie
overt act No. 1 was admitted
arrangement
Jolley
certainly ample
and there
to de-
was
justify
per-
jury
liver
to a
submission to the
Jolley
2, 3, 4,
overt acts
son whom
called ‘Joe’.”
numbered
9 and 13.
Flynn
she
testified that
Mamie
Mrs.
Under
the evidence in this
grocery
off the
operated a
store
case,
we think that it was for the
River Road
Road
Gordon
say
conspiracy
whether there was
Georgia;
in her
Cobb
so,
and if
whether one or more than
1953,
store,
heard the
she
conspiracy
one.
If more than one
was
Joe,
talking
to a man named
proved, of at
ap
least one of which the
making
some
a deal about
pellant
guilty,
it is clear that there
bring
agreed
the whis-
the
key
affecting
was no variance
his substan
day
did not hear
next
but she
rights.9
tial
say
much
of them
how
either
urges
day ap-
involved;
dis
the next
was
pellant
refusing
asked
to admit
her store and “he
trict court erred
came to
* *
*
Joe,
acquitted
I
and told evidence that he
been
me
where
charged
says,
know,
I want
when
with the
him I didn’t
my money
and he
the State Courts
alleged
my whiskey,
said,
I
described in
overt acts
same acts
nothing
any money
jeopardy
for numbers 6 and 9. The
I know
double
ought
said, you
to,
provision of the Fifth
and he
be-
Amendment does
you
prosecu-
not stand as a bar to federal
cause
overheard what was said.”
Berger
States,
52(a),
81,
78,
7.
Rule
Federal Rules of Criminal
U.S.
9.
Procedure,
U.S.C.A.;
629,
55 S.Ct.
Affirmed. Judge (concur-
CAMERON, Circuit
ring specially). conspiracy
The thread depends is thin indeed. conviction hearing reading briefs and After great argument doubt I was oral should conviction whether reading revealed the record But stand. persons with whom that five conspired have Negroes, had been one of whom laborer and employed him as farma *7 mechanic; awas another deals, liquor whose confederate close or more on one
fines
occasions. depicted, relationship known thus below, us, the Court understanding implications fur- of its ingredient proof fills
nish them, evident without interstices so explain in the record which much signifi- probative without
otherwise is Supplementing other- the facts
cance. knowledge appearing wise understanding, plain that it is rather brains and furnished leadership the con- pliant
spiracy the others were responding
pawns to his will and de- pos- This element makes sire. added affirming to concur
sible me
judgment of conviction. States, 270; States,
10. Jerome
318 U.S.
71 L.Ed.
v. United
Serio
640;
Cir.,