Goldberg v. United States

297 F. 98 | 5th Cir. | 1924

BRYAN, Circuit Judge.

This is an indictment, under section 37 of the Criminal Code (Comp. St. § 10201), in three counts for conspiracy, on August 26, 1922, to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138J4 et seq.). Conspiracy is charged against Isaac Goldberg, Henry Mears, Harry Ritman, and Sam-Ritman; but it is alleged that Harry Ritman and Sam Ritman were not indicted, because they had been previously indicted and pleaded guilty to another indictment setting out the same facts. The conspiracy charged in the second count of the indictment is:

“To commit an offense against tbe United States, that is to say, to violate an act of Congress commonly known as the National Prohibition Act by then and there transporting intoxicating liquors without making at the time a permanent record of such liquors showing in detail the amount and kind of liquors transported, together with the names) and addresses of the consignor and consignee and the time and place of such transportation.”

A nolle prosequi was entered as to Mears, and the prosecution proceeded against Isaac Goldberg alone, who hereinafter will be referred to as the defendant. This indictment was consolidated with another one which charged the defendant, in separate counts, with the unlawful sale and possession of intoxicating Jiquors.

There was evidence to sustain one of the overt acts alleged to the effect that Harry Ritman and Sam Ritman delivered 500 quarts of intoxicating liquor, packed in barrels, to the Ocean Steamship Company for transportation to New York City. A government witness was permitted to testify that he found 10 barrels of whisky at the Ocean Steamship Company’s wharf on Henry Mears’ truck, and that he did not have a search warrant, but opened the barrels in which the liquor was packed and seized it. The indictment against Harry Hitman and Sam Hitman, upon'which was indorsed their pleas of guilty, was received in evidence, and they testified that they had packed and sent the liquor to the steamship company’s wharf for shipment to New York. These two witnesses gave further testimony which, if true, showed that they were guilty* of the offense charged .against them by the indictment offered in evidence, which charges the same offense as the indictment in this case. Harry Hitman also testified that the attempt to ship the liquor was in pursuance of an agreement he had in May, 1922, with the defendant. The foregoing evidence was admitted over the objection and exception of the defendant.

At the conclusion of the government’s case in chief, a motion was submitted to instruct the jury to find for the defendant; but it was denied by the court. The defendant testified in his own behalf and denied any knowledge of or connection with either the conspiracy charged or the overt acNtestified to by the two Hitmans, and did not renew his motion for a directed verdict at the close of all the evidence.

The court charged of its own motion that if the defendant were guilty, Harry Hitman and Sam Hitman were accomplices, but that the jury was not required to disregard their testimony even though it were not corroborated. The court further charged, at defendant’s request, that although the testimony of an accomplice is admissible, it should be scrutinized with care, and that the jury should inquire into the probable motive which prompted it. The court also charged the jury as follows:

“There can be a legal transportation of liquor under the Volstead Act. You can get a-permit and transport it legally, but if the defendant relies on legal transportation of liquor, then he must prove that he complied with the law in the respects that would make it legal, and that, of course, is not the contention here.”

The defendant-was convicted on all three counts of the indictment, • and was sentenced to pay a fine of $5,000 and to be imprisoned for a term of 20 months.

The defendant assigns as error: (1) The overruling of his demurrer to the indictment; (2) the consolidation of indictments; (3) the overruling of his objections to the evidence above set out as to opening the barrels and seizing the liquor contained therein; as to the indictment against Harry Hitman and Sam Hitman, which contained their pleas of guilty; and as to Harry Hitman’s testimony that he attempted to ship liquor from Savannah to New York in pursuance of an agree-. ment with the defendant; (4) the overruling of the motion to direct a verdict; and (5) the above-mentioned charges of the court given of its own motion.

1. The second count of the indictment charges a conspiracy to transport liquor in violation of section 10 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, §■ 10138%e) and in almost the exact language of that .section. It is hot necessary that all the parties to a conspiracy be jointly indicted. Here it is apparent that it was not known to the government that the defendant was a party to the conspiracy until after Harry "and Sam Pitman were indicted and pleaded guilty. The defendant was in no worse plight than if he had.been jointly indicted with the two Pitmans and they had pleaded guilty. It is urged that the time of the commission of the overt acts is not alleged, and that consequently it does not appear whether they were committed before or after the conspiracy was formed. But it is alleged that they were committed in pursuance of and to effect the object of a conspiracy, so that we are of opinion that it is alleged that the overt acts were ccmmitted subsequently to the formation of the conspiracy. While it is true that the conspiracy charged is somewhat general in its nature, it Is conceivably not more so than the agreement of the parties, and is therefore not objectionable on that account. On the whole, we think the second count of the indictment is sufficient. It is unnecessary to consider the other counts, since the punishment imposed is less than that which could have been imposed under the second count. Mills v. United States (C. C. A.) 294 Fed. 77, opinion filed November 30, 1923.

2. The consolidation of the two indictments was within the discretion of the court, because they charge the same class of crime. R. S. § 1024- (Comp. St. § 1690). The defendant alone was on trial, and the trial court’s discretion does not appear to have been abused. Riddle v. United States (C. C. A.) 279 Fed. 216.

3. The defendant cannot avail himself of an objection to the search of the truck and the seizure of the- liquor. He did not claim to have any right either to possession of the truck or the liquor. It was not error to admit in evidence the indictment previously found against Harry Pitman and Sam Pitman upon which there was indorsed their pleas of guilty. The fact that such' an indictment had been found, and such pleas entered, was alleged in the indictment against the defenda'nt, and necessarily so, as already held. Besides, both' Harry and Sam Pitman, who had pleaded guilty, testified at the trial and again admitted their guilt. There was no error in admitting Harry Pitman’s testimony that the conspiracy agreement was entered into as early as May, 1922. The indictment was found February 14, 1923, and the prosecution was well within the period of limitations. It alleges the conspiracy was entered into on August 26, 1922; but the date was immaterial, and consequently evidence that the conspiracy was actually entered into three months earlier was admissible.

4. The question as to the sufficiency of the evidence to sustain a verdict is not properly before us, because no motion to direct a verdict was made at the conclusion of all the evidence. The defendant waived the motion he made at the close of'the government’s case in chief by introducing evidence himself. Kasle v. United States, 233 Fed. 878,147 C. C. A. 552; Blackstock v. United States (C. C. A.) 261 Fed. 150; Trelease v. United States (C. C. A.) 266 Fed. 886.

5. The court charged the jury, at defendant’s request, that the testimony of an accomplice should be scrutinized with care. It was not error for the court of its own motion also to charge the jury that they could convict on the uncorroborated testimony of accomplices. Mark Yick Hee v. United States, 223 Fed. 732, 139 C. C. A. 262; Erber v. United States, 234 Fed. 221, 148 C. C. A. 123; Knoell v. United States, 239 Fed. 16, 152 C. C. A. 66. The charge of the court that the burden was not upon the government to prove that the defendant had a permit for the transportation of liquor is correct. Sharp v. United States (C. C. A.) 280 Fed. 86.

Reversible error is not made to appear by any of the assignments, and the judgment is affirmed.