No. 4011 | 6th Cir. | Jul 31, 1924
The plaintiffs in error were tried and convicted in the District Court on an indictment containing two counts. The first count charges a conspiracy unlawfully to transport 100 gallons of whisky in violation of section 3-of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § lOlSSV^aa). The second count charges the unlawful transportation of 100 gallons of whisky for beverage purposes; such transportation being then and there prohibited and unlawful. The trial court overruled the demurrer to this indictment and also overruled “a motion to quash the testimony and for the return of the property seized by prohibition agents J. M. Wakefield and J. T..Tartar, acting without a search warrant or warrant of arrest."
A bill of particulars was filed in which it was stated that the conspiracy alleged in the indictment took place on or about the 4th day of April, 1923, in Jassamine and Woodfield counties, Ky. That the whisky was contained in 16 five-gallon kegs and was transported in a Buick roadster along the public highways in said, counties. The defendants offered no testimony, but at the close of the evidence for the government moved for a directed verdict, which motion was overruled and exceptions noted. The defendants were convicted and sentenced upon both counts.
The indictment in this case states facts sufficient to charge these defendants with a conspiracy to commit an offense against the United States and within the jurisdiction of the court, and also with the actual commission of the offense of unlawfully transporting intoxicating liquor for beverage purposes within the Eastern district of Kentucky, and without reference whatever to the bill of particulars fully advised the defendants of the offenses charged and which they would be required
The defendants’ plea of not guilty placed the burden upon the government to establish the guilt of the defendants upon each count •of this indictment beyond a reasonable doubt. To meet this burden the government offered as witnesses the two prohibition enforcement officers who made the arrest. These witnesses testified that they were •driving along the highway in an opposite direction from the direction in which these defendants were going; that when they passed the defendants they saw something covered over in the rearjpart of the automobile, and for that reason turned and followed it. The defendants, or one of them, drove the Buick roadster at about 55 miles an hour without slackening for curves, and in making a reverse curve the rear end of defendant’s car left the roadway and struck the fence; that the defendant Stafford, who it is claimed was the owner of this car, or at least was driving it, then jumped out of the car and started to run away. One of the officers shot in the air to frighten him and he stopped and came back toward the car. The defendant Shelton was standing-by the side of the car when the officers reached him. After arresting both defendants the officers searched the car and found therein 16 kegs of whisky containing 5 gallons each.
The government offered no other or further evidence to prove the charge of conspiracy, except that these two defendants were riding in the car in which the intoxicating liquor was being transported, and when the car was wrecked Stafford attempted to escape. To sustain a charge of conspiracy the government need not furnish direct proof of the unlawful plan or agreement, but such charge may be sustained by evidence showing a concert of action in the commission of an unlawful act, or by proof of other facts from which the natural inference arises that the unlawful overt act was in furtherance of a common design of the alleged conspirators. Windsor v. U. S. (C. C. A.) 286 F. 51" court="6th Cir." date_filed="1923-01-09" href="https://app.midpage.ai/document/windsor-v-united-states-8828797?utm_source=webapp" opinion_id="8828797">286 Fed. 51.
In Windsor v. U. S., supra, this court sustained a conviction for conspiracy where a person riding in, but not driving, a car in which intoxicating liquors was being unlawfully transported, jumped from the car and fled from the arresting officer, upon the theory that flight indicated guilty knowledge, but in this case it was the driver of the car that attempted to escape. While' perhaps it does not clearly appear that Stafford was the driver of this car, nevertheless that fact was conceded in the argument of the case, and the trial court so stated in its opinion upon the motion to quash. Stafford, as the driver of the car, must be held to have had knowledge that it was then and there being used for the unlawful transportation of intoxicating liquors. There is no evidence whatever tending to show when or under what circumstances Shelton got into this car. He may have had knowledge at the time he got into the car of the unlawful purposes for which it
In the opinion of this court, the evidence offered on the part of the government in this case is not sufficient to furnish a substantial basis for a finding by the jury, beyond a reasonable doubt, that Shelton had entered into a conspiracy with Stafford for the commission of this offense, or that he was aiding or participating in the commission thereof.
For the reasons stated, the judgment of the District Court is reversed as to Shelton on both counts, and as to Stafford upon the first count. The cause is remanded for sentence of Stafford upon the second count, and for further proceedings in accordance with this opinion.