133 F.2d 23 | D.C. Cir. | 1942
Appellant and Edith Gardner were convicted of conspiracy; she upon a plea of guilty, he, following a trial by jury. On this appeal it is contended that the District Court erred in admitting in evidence certain letters, papers and documents as proof of overt acts upon the part of appellant, without first having proved that appellant took part in a conspiracy. To support this contention appellant relies upon cases which hold that the conspiracy must have been entered into before the overt act was committed;
Appellant’s second contention is that the trial court erred, in refusing to direct a verdict of not guilty as to the count upon which appellant was convicted, because the government failed to prove appellant’s participation in the conspiracy. A careful examination of the record satisfies us, however, that there was ample evidence to justify submission of the case to the jury and to support the verdict.
Affirmed.
Goukler v. United States, 3 Cir., 294 F. 274, 275, 276: “The demurrer charged in substance that the count disclosed one completed transaction and that, accordingly, it failed to show that conspiracy preceded the overt act. This proposition is fundamental and, if sustained in fact, the count is bad. * * * Here the count charged conspiracy on the 16th day ■of November, 1922, and it charged that the overt act, though committed on the same day, was committed ‘afterwards.’ We are of opinion that the indictment is good.”
Sprague v. Aderholt, D.C.N.D.Ga., 45 F.2d 790.
Stirlen v. United States, 7 Cir., 183 F. 302, certiorari denied, 220 U.S. 617, 31 S.Ct. 721, 55 L.Ed. 611.
Miller v. United States, 8 Cir., 133 F. 337, 353.
Jianole v. United States, 8 Cir., 299 F. 496, 498.
McDaniel v. United States, 5 Cir., 24 F.2d 303.
Marino v. United States, 9 Cir., 91 F.2d 691, 694, 113 A.L.R. 975, certiorari denied, Gullo v. United States, 302 U.S. 764, 58 S.Ct. 410, 82 L.Ed. 593.
Two cases cited by appellant in support of his contention are mere memorandum orders denying petitions for certiorari. Troutman v. United States and Young v. United States, 306 U.S. 649, 59 S.Ct. 590, 83 L.Ed. 1047, 1048.
Fisher v. United States, 4 Cir., 2 F.2d 843, 846, certiorari denied, 266 U.S. 629, 45 S.Ct. 128, 69 L.Ed. 476: “It hardly need be said that a conspiracy, is often proved by the overt act. The fact that two men are found together breaking into a bank is indubitable proof that they had agreed to commit the burglary.”; Williamson v. United States, 207 U.S. 425, 451, 28 S.Ct. 163, 52 L.Ed. 278; Heike v. United States, 227 U.S. 131, 145, 33 S.Ct. 226, 57 L.Ed. 450; 2 Wigmore, Evidence (3d ed. 1940) § 370. See Wood v. United States, 16 Pet. [U.S.] 342, 360, 10 L.Ed. 987. Cf. Standard Oil Co. of N. J. v. United States, 221 U.S. 1, 75, 76, 31 S.Ct. 502, 55 L.Ed. 619, 34 L.R.A.,N.S., 634, Ann.Cas.1912D, 734.
Hoeppel v. United States, 66 App.D.C. 71, 76, 85 F.2d 237, 242; Ercoli v. United States, decided November 9, 1942, 76 U.S.App.D.C. 360, 131 F.2d 354.