227 F. 832 | 8th Cir. | 1915
The defendants below in this case were convicted of introducing liquor from without the state of Oklahoma into that part of the state which was formerly the Indian Territory in violation of Act March 1, 1895, c. 145, 28 Stat. 693, and each of them was sentenced to imprisonment in the United States penitentiary at Leavenworth for the period of 18 months and to pay a fine of $150.
Ford owned and operated a wagon yard and handled whisky in connection with it. The officer who arrested Fielder saw on the steps of one of the passenger coaches of the train a man about the size of Ford, dressed in a light suit, and Ford wore a light suit in the afternoon of that day, when he assisted in getting a bond for Fielder; but Ford and two other witnesses testified that he was at his residence in Muskogee at such hours that he could not have been on that train unless their testimony was- false. The facts that the telescopes of liquor from wholesale liquor dealers in Texas were thrown off the passenger train which Fielder drove several miles to meet, that he waited for that train and picked them up and proceeded to load them, constitute substantial evidence that he knefv they were coming, that their destination was not the right of way where they landed, but some other place in the part of Oklahoma in which he picked them up, and that he was engaged in continuing their transportation to. that place, probably Muskogee, and here was substantial evidence from which a jury might lawfully find that he was engaged in introducing the liquor from without the state into that part of Oklahoma to which he was transporting it. But there was no- such testimony against Ford. There was no evidence that he knew before Fielder was arrested that his nephew loaned his horse and buggy to Fielder, or for what purpose Fielder had borrowed it, no evidence that he had ordered the introduction of the liquor, no evidence that he knew it was coming, or that he had any interest in Or connection with it, for the testimony of one witness that he saw a man of his size .dressed in a light suit on the train and the fact that he procured or made the bond for Fielder are too remote and inconsequential to constitute any substantial evidence that
The judgment against Fielder must accordingly be affirmed, and the judgment against Ford must be reversed, and his case must be remanded to the court below, with instructions to grant a new trial.
And it is so ordered.
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