263 F. 968 | 6th Cir. | 1920
Eads is a railroad station a few miles north of Memphis, in Tennessee. Thirty suit cases containing intoxicating liquors were sent from Paducah Ky., in a baggage car, checked in the usual way, 6 to Eads and 24 to Memphis. Before reaching Eads, the holders of the checks for the 24 appeared in the baggage car, surrendered their checks, and directed that these, also, be put off at Eads. All 30 cases were, accordingly set off on the station platform. Two automobiles were there standing. Some of the suit cases had been loaded into each machine, when officers undertook to arrest those engaged in the transaction. The farther machine started up and escaped. On their way back to Memphis, with those who had been arrested and with the liquor which had been seized, the officers observed a machine which had been headed the same way, but was overturned in the ditch. There were broken bottles about, and other evidence that this machine had been carrying liquor, but no suit cases were there found. There was reason to believe that Ousler had been driving this wrecked machine, and he was indicted for violation of the Reed Amendment (39 Stat. 1069 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 8739a]), the charge being that he “did unlawfully, willfully, and knowingly order, purchase, and cause certain intoxicating liquors * * * to be transported in interstate commerce; that is to say, from Paducah, in the state of Kentucky, to Memphis, in the state of Tennessee, by means of the Nashville, Chattanooga & St. Louis Railroad.” He was convicted and brings this writ of error.
We are satisfied that there is evidence from which the jury could rightfully infer that Ousler knowingly participated in executing a plan
“If you believe the oar ditched was the car that ran away from Eads, and if it had whisky in if out of this shipment, and that Cyril [Ousler] was driving it when it turned over bringing it into Memphis — if you believe that beyond a reasonable doubt — then I charge you he would be guilty of violating this act. * * * I charge you that if you believe he was down there driving that car that night, and there was whisky in the car that made its getaway over at Eads, and Cyril [Ousler] was driving it and transporting the whisky on the balance of its journey to Memphis, it would be your duty to return a verdict of guilty. * * *
“A Juror: There is no proof in the record to show that he ordered file whisky. Suppose we come to the conclusion that some one else ordered it, and sent him down there for it; liow should we act?
“The Court: I said fo you a moment ago that if you conclude from all the evidence that the car that turned over down there was loaded with whisky token out. of this shipment, and that Cyril [Ousler] was driving it, thereby coni-' Dieting the transportation from Paducah into Memphis, in hauling it from Eads here, then you should convict him.”
Thereupon respondent’s counsel excepted to the statement of the court in response to the question to the juror, and asked the court to charge that if defendant did not cause the liquor to be transported into the state of Tennessee as an article of interstate commerce, but only sought to bring it from Eads to Memphis, he would not be guilty. The court declined to charge as thus requested, and substantially repeated tiic charge already made. Without doubt, the court overlooked the (bought that respondent ought not to be convicted unless he had knowledge of the fact that the shipment was interstate and had not ended at Eads, and the charge as given was erroneous. The only hesitation we have in reversing arises from a doubt whether the error or deficiency
We would be infringing upon the province of the jury, if we said that Ousler’s guilt was so clear as to malee the error nonprejudicial. It is not for the court to say that the jury could not base a reasonable doubt upon the theory that, even if Ousler did drive this car, he was doing so as any other taxicab driver might, without understanding or caring about his passengers’ business, and that the flight from Eads was the impulsive or terrified effort to get away from strange men, who, with drawn revolvers, were ordering his hands up, rather than an intelligent effort to participate in interstate commerce.
The judgment must be reversed, and tire case remanded for new trial.