256 F. 284 | 5th Cir. | 1919
This is a writ of error sued out by D. M. Hardy, J. R. Young, and J. O. Elliott to obtain a review of a judgment convicting them on each of the 15 counts of an indictment against them and Eugene Flowers, alias J. B. Flowers.
Each count of the indictment charged a conspiracy to commit an offense against the United States, that one or more of the alleged conspirators did a stated act or acts to effect the object of the conspiracy, and that the alleged conspiracy was entered into on or about the 1st day of July, 1917, and continued to the 15th day of April, 1918. The conspiracy charged in some of the counts was to commit the offense denounced by section 8 of the Act of March 1, 1895 (28 Stat. 693, c. 145 [Comp. St. § 4136b]), prohibiting the transportation of intoxicating liquors into that part of Oklahoma which at the time of the enactment of that statute was known as the Indian Territory. The conspiracy charged in the remaining counts was to commit the offense created by the provision of Act Cong. March 3, 1917, c. 162, 39 Stat. 1069 (Comp. St. 1918, §§ 8739a, 10387a-10387c), known as the Reed Amendment.
That there was evidence to sustain the charges contained in the indictment is not questioned. There was evidence tending to prove that the persons indicted, by concerted action, aided others who bought intoxicating liquors from the defendant Hardy at Wichita Falls, Tex., where Efardy conducted a wholesale and retail liquor business, in getting the liquor bought transported from that place into that part of Oklahoma which formerly was a part of the Indian Territory. Tn behalf of the plaintiffs in error it is contended that reversible errors were committed in rulings made on objections to evidence and in giving and refusing instructions to the jury.
“Q. Do you know where Mr. Langford and Mr. SxtLawn had their room during the time that they were working together in that work? A. They roomed at— I believe it is called — the Alta Rooms; I am not sure; it is a place over a garage; I think it was over a garage.
*286 “Q. Do you know whether it cornered on an alley, was a room on the second floor in a building whieh cornered on the alley that ran back of Hardy’s wholesale liquor house, cornered by a ■ corner of that alley and Seventh street, in Wichita Falls? A. No, no; I was not there but on one occasion, and the room that they had then was on the second floor of the street on Ohio street or avenue, and overlooked the street, and the room was near the center of the building; it was not a corner room.
“Q. If they moved from that place, and took a room over a pool hall, from which room they could look right down this alley back of Hardy’s place, do you know it if such a thing occurred? A. No, sir.
“Q. You do not know that they changed their room? A. No, sir.
“Q. Do you know how long Flowers was confined in jail after he was arrested on March 12th? A. I think that I can tell. His bond was made on March 13th, and he was put in on March 12th.
“Q. Sir? A. His bond was made on the 13th.
.“Q. Arrested on the 12th and the bond was made on the 13th? A. Yes, sir; now, I am not sure whether he was put back in jail again on the indictment or not. I am not sure about that, but I don’t think so.
“Q. Do you know what the arrangement was between Flowers and Splawn and Langford, personally, yourself? A. No, sir.
“Q. Or what kind of a deal he had with them? A. No, sir.”
The evidence adduced on the direct examination of the witness was well calculated to make the impression on the jury that Flowers, who was named in the indictment as one of the conspirators, and whose guilt was shown by evidence introduced by the prosecution, had been permitted to escape trial' after giving bond in an unnamed amount, that this might have occurred because of his co-operation with the agents of the government in procuring evidence of the commission of the crimes alleged, and that as to him the prosecution was not in good faith. The government was entitled to rebut that evidence, introduced by those on trial. It was permissible on cross-examination to bring-out other features of the transaction, a part only of which had been disclosed by the testimony elicited by direct examination of the witness.
Proof of the facts that Flowers secured his release from custody by giving a $5,000 appearance bond, that thereafter and before the case was called for trial he had fled, and that a forfeiture was entered on his bond, had some tendency to prove that the prosecution was not at fault in failing to bring him to trial with -his alleged co-conspirators. Whether the jury could or could not properly have been influenced by evidence introduced by the defendants on trial which indicated that one who was jointly indicted with them had been enabled to. get away before the case was brought to trial, it was permissible- for the prosecution to show that the transaction which had been testified to in behalf of the defendants on trial was not such a one as would support an inference that the prosecution consented to or connived at one of the alleged conspirator’s escaping a trial and conviction. It was not error to admit the evidence in question for the purpose stated.
It may be assumed, without being conceded, that it is permissible for one charged with having conspired with others to commit a stated criminal offense to prove that, before taking part in the transaction upon which that charge is based, he had been informed by the prosecuting officer that such a transaction is not a violation of law. The excluded evidence in question was not to that effect. The transaction which the proposed testimony showed was passed on by the district attorney was not shown to have had the features which give criminality to the transactions now in question. In material respects it differed from the transactions shown by the evidence introduced by the prosecution in this case. That transaction occurred before the enactment of the Reed Amendment, which made it a crime to cause intoxicating liquor to be transported in interstate commerce into a state or territory the laws of which state or territory prohibit the manufacture or sale therein of intoxicating liquors for beverage purposes.
The statement made to the district attorney did not- show the commission, or an attempt or conspiracy to commit, the offense created by the above-cited statute of March 1,- 1895, as it did not show that the liquor in question was intended to be carried into that part of Oklahoma which formerly was known as the Indian Territory. Whether the questioned action of the court is or is not sustainable on another ground, it is sustainable on the ground that the evidence offered had no tendency to prove that what the district attorney did amounted to advising Hardy that there was no criminality in such transactions as those relied on to support the charges made in this case.
“That upon the issue as to the knowledge and intent of the defendants, the government was permitted to offer in evidence the wholesale records of the defendant Hardy, which the evidence showed were kept by the defendant Young, on what is known as form 52, prescribed by the Commissioner of Internal Revenue, under the provisions of section 3318 of the Revised Statutes, which provides that such wholesale dealer shall, at the time of sending out of his possession or stock any spirits, and before the same are removed from his premises, enter in said book the day when the same and the place of business of the person or firm to whom such spirits are to be sent, etc.; it being shown from the evidence that large quantities of such liquors had been frequently delivered to persons to be transported to Oklahoma, directed from the wholesale establishment of D. M. Hardy, and that no entry had been made of such sales in said record, unless they were covered by entries of sales to ‘D. M. Hardy, Retail.’ Counsel for the government, in the opening argument, had argued these facts as evidence of the efforts of the defendants to conceal these transactions, and of their knowledge of the fact that the sales were being made for an unlawful purpose, as the record did show entries of sales to other parties at places where such sales were not prohibited by law. In reply to this evidence and this argument, counsel for defendants had stated to the jury that the records were correctly kept and that agents of the Internal Revenue Department had checked the records and had made a report to Washington of the manner in which they were kept, and that no one in Wash-*289 inglon liad ever said it was a violation of the law or an improper way of keeping the record; that in reply to this argument the district attorney used the language quoted in the bill of exceptions and stated the law referred to, which the court deemed to bo a proper reply to the argument of counsel for defendants, and a proper argument as to the knowledge and intent of the defendants in failing to enter in the records referred to the names and places of business of the persons to whom such liquors were sent.”
The part in question of the district attorney’s argument, made under the circumstances stated, was not subject to the objection interposed to it. On the question of Hardy’s intent in doing what had the effect of aiding persons who made wholesale purchases of liquor from him in getting that liquor transported from Texas into Oklahoma, it was permissible to consider an attending circumstance which had a tendency to prove that he concealed or attempted to conceal those transactions. In this connection it was pertinent to call attention to the existence of a legal requirement that such transactions he disclosed in a prescribed way, and to the circumstance that the requirement was complied with as to other similar transactions which did not involve a criminal intent, but was not complied with as to the transactions in question.
The record does not disclose any reversible error. The judgment is affirmed.