17 F.2d 886 | 8th Cir. | 1927
Tbe plaintiff in error, hereinafter referred to as the defendant, was indicted in two counts with one Ered Gladfelter for conspiracy to violate tbe National Prohibition Act (Comp. St. § 10138^4 et seq.) to possess, transport, and sell intoxicating liquors, and for selling intoxicating liquors. Tbe first count charged tbe conspiracy, and tbe second count selling intoxicating liquors.
Upon arraignment, be entered a plea of not guilty. He was tried alone, there having been a severance granted to Gladfelter. His eodefendant testified as a witness for tbe government, and, upon a verdict of guilty on both eounts, tbe defendant was sentenced on both counts. To reverse tbe judgment, this writ of error is prosecuted.
There are sixteen assignments of error, but the only ground relied upon in tbe brief and oral argument of bis counsel is that be was entrapped by tbe officers and by them induced to commit tbe crimes charged. This was properly raised by a motion at tbe close of all tbe evidence for a directed verdict of not guilty on both counts, and by instructions to tbe jury requested and by tbe court denied, to which proper exceptions were reserved.
Tbe court in its charge to tbe jury stated that “in its opinion there was not sufficient evidence here of any entrapment of tbe defendant,” which was also excepted to.
Tbe defendant in bis testimony denied: That be transported, sold, or possessed any intoxicating liquors, or bad any agreement, express or implied, with bis codefendant Gladfelter to do so. That be never bad any agreement with Brehm or Gladfelter or any one else to transport or sell any liquor. That be went to Brebm’s bouse in bis own ear with Gladfelter to buy a truck from him, “as I had wanted to buy one and a man by tbe name of Abels referred me to Brehm. When we drove there, I didn’t know where Brehm lived, but learned by inquiries. , When I reached his bouse two fellows were standing in front of tbe bouse, who told me that it was Brebm’s bouse, to walk in, as Brehm would be back in a minute. I don’t know who the men were, but neither of them testified as a witness at tbe trial.” He did not drive bis car to tbe bouse, but left it a short distance from tbe bouse. He also testified that be negotiated with Brehm for tbe truck, which be wanted to buy for bis brother-in-law, who lived 14 miles from Omaha. Brehm wanted $225 for bis truck. .
Abejs was not called as a witness.
He denied on cross-examination that be had ever served a sentence in tbe Nebraska Penitentiary. After tbe government on rebuttal bad introduced evidence of bis conviction and sentence of imprisonment in that penitentiary, be was recalled by bis counsel, and stated that, when be denied bis imprisonment, be was under tbe impression that tbe question related to tbe town of Nebraska, in tbe state of Nebraska. (There is no state prison in that town.) He also admitted that be bad served 2% years in tbe Iowa State Penitentiary.
Brehm, on rebuttal, testified that be bad no conversation with tbe defendant about the sale of a truck, as be did not own one at that time.
As it is not claimed that tbe verdict was ' not amply sustained by tbe evidence, entrapment to commit tbe offense is tbe only question before us.
Gladfelter testified: That he has known the- defendant four years. That be first met him while they were inmates of the Nebraska State Penitentiary. In March, 1924, be met tbe defendant in a soft drink parlor in Lincoln, Neb., and “be took me to supper. After supper be wanted me to bard some stuff, be said, to go out in tbe country. I told him I would. He bad a Dodge touring car with tbe curtains up. We went out by University place, and on tbe way out be said he bad to deliver some stuff to Brehm, but be didn’t call him by name, simply mentioned him as ‘this Russian.’ I didn’t know Brebm’s name, then. He bad tbe stuff ditched there. We found some alcohol there in the weeds on tbe east side of tbe road; before that we found tbe ‘hootch’ in a straw pile on tbe same road, and then we went out and got tbe two gallons (referring to the alcohol). They found three gallons of hootch there. St. Clair said be was going to meet that Russian there, so we turned out tbe lights. Some men drove up, and we picked them up; it was pretty dark. St. Clair loaded tbe stuff into the ear of tbe other men; I don’t know whose ear it was, it was a Eord coupé. St. Clair said be had three gallons stolen. The alcohol and whisky was in
Brehm testified: He knew the defendant and pointed him out in the courtroom. “J saw him in March, 1924, at a soft drink parlor and asked him if I could get any ‘moon’ off of him, or any liquor. He said I could have it, if I was a nice straight fellow. So we made a bargain for five gallons of whisky off of him, and two gallons of alcohol. After we made that agreement he told me what time I should be up there at the place so as to get the stuff. He said he would be there shortly before 8 o’clock, or at 8 o’clock, so I went to the sheriff’s office and got John Smith, a deputy, and we went out there, both of us, to get the stuff from him. I was employed by the sheriff’s office at the time, and he wanted to know if I knew the defendant, and I told him I didn’t know him, but could easily get acquainted with him. He asked me to make arrangements to get money to buy the liquor, and I did, but T did not use it. The price he made me was $7 a gallon for the liquor and $12 a gallon for the alcohol. I told him I would take five gallons of liquor and two gallons of alcohol. Smith and I went to the place where St. Clair had arranged to meet me, and he got there about 8 o’clock. I asked him where he had the liquor, and he handed me the stuff, and I put it in my car. He said he had bad luck that night, some one had stolen some of it, and he could only get me three gallons of whisky and two gallons of alcohol, but said he would get me two more bottles, but would have to go back to the storage pile to get them for- me. I told them to get them and bring them to my place, where I lived, and I went home, drove the ear in my garage, and left the stuff there. A little later St. Clair came through the alley and handed me the stuff, and put it in the garage.- After I got it in the garage, I told him to come on and I would give him the money, and he handed me a package in a gunny sack. The officers were in hiding in a neighboring bam about three feet away, and I called them, and they arrested him in my house. Gladfelter was with him that night.”
Arthur H. Smith, a deputy sheriff of Lincoln, Neb., testified: That he knew Brehm. “That evening I went out with him in his Ford touring car directly north of University ' place, and three miles from the center of Lincoln. We saw a car standing there and Brehm said: ‘That’s his car.’ The man there was St. Clair. He told Brehm to drive up in front of the car, which he did. I didn’t get out. Brehm got out and went with the other man to the side of the road, and the other man came back with two burlap sacks. Brehm and St. Clair came over with him, and then they put them in Brehm’s Ford; Gladfelter was in defendant’s car. I knew him and recognized him; there was something said about there being only three gallons of whisky and two gallons of alcohol, and defendant said something about having had three gallons of whisky stolen from him. We then drove back to Brehm’s house and waited for St. Clair who came up 20 or 25 minutes later, and handed Brehm a package, apparently two cans with some paper and. apparently some burlap around them, aqd he said, ‘John, you had better hide this with the rest.’ We then walked into the house and in a few minutes Mr. Carroll, the sheriff, Mr. Yoorhess and Mr. Hensley came in and arrested the defendant. I felt the sacks and felt there were two little tops in one sack and in the other felt the glass jugs. I also felt two cans in Brehm’s car that night, which had been put in when they met on the road.”
The chemist of the state of Nebraska testified that he has made a chemical analysis of the liquors, shown by other witnesses to be those he was charged with having transported and sold, and that the alcohol was 95 per cent, pure alcohol, and the whisky, which was moonshine, contained pure grain or ethyl alcohol 25 per cent, by volume.
The other officers testified to practically the same facts as Smith did. The liquor which the chemist had examined was identified as the whisky and alcohol which was delivered by the defendant to Brehm,
What constitutes entrapment has been so frequently determined by this court and all national courts, including the Supreme Court, that it is no longer an open question. It is only when the proof in a particular case established an entrapment by officers, different from the facts in this case, that this defense has been sustained.
In Rossi v. United States, 293 F. 896, this court quoted and followed the rule enunciated by the Circuit Court of Appeals for the Sixth Circuit in Billingsley v. United States, 274 F. 86, 89.
“The evidence offered on the part of the United States tends to prove that the public officials of Michigan were acting in good faith; that they did suspect, and had reasonable ground to suspect, that these defendants were engaged in the unlawful transportation of liquor into the state of Michigan; and that these officials made no mistake in arriving at that conclusion.”
Without citing the numerous authorities on this subject, we refer only to the latest decision of this court (C. M. Spring Drug Co. v. United States, 12 F.[2d] 852, 856), where it was held:
“It is well settled by the decisions of the Supreme Court of the United States, we think now universally followed in the several circuits, that, where the government, through its agents, has reasonable cause to believe that the law is being violated by the defendant, they may legally entrap the defendant by decoy letters or by pretended purchasers”— citing a large number of authorities.
In Ritter v. United States, 293 F. 187 (C. C. A. 9), Judge Rudkin, speaking for the court, said:
“In Peterson v. United States, 255 F. 433,” we held: “ ‘It is the settled rule in this circuit that where the officers of the law have incited a person to commit the crime charged, and lured him on to its consummation with the purpose of arresting him, * * * the law will not authorize a verdict of guilty’. Prom that rule we have no desire to depart. * 31 * But if the intent and purpose to violate the law are present the mere fact that public officers furnish the opportunity is no defense.” <
It then quotes from the Woo Wai Case (C. C. A.) 223 F. 412, the following excerpt, which it followed:
“The idea of the law is, however, that a man who is engaged in unlawful business may have an opportunity, and the government officers may afford him an opportunity, to commit a crime. If a government officer goes into a place, asks for a drink of whisky, and it is given to him at his solicitation, convictions based on such evidence are frequently sustained.”
The court committed no error, and the judgment is affirmed.
