Reece v. United States, 10161.

• Decision Date: 01 February 1943
• Docket Number: No. 10161.,10161.
• Citation: 131 F.2d 186
• Parties: REECE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

131 F.2d 186 (1942)

REECE et al. v. UNITED STATES.

No. 10161.

Circuit Court of Appeals, Fifth Circuit.

October 31, 1942.

Writ of Certiorari Denied February 1, 1943.

Clint W. Hager and J. F. Kemp, both of Atlanta, Ga., for appellants.

Lawrence S. Camp, U. S. Atty., and Harvey H. Tisinger, Asst. U. S. Atty., both of Atlanta, Ga., for appellee.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.

Writ of Certiorari Denied February 1, 1943. See 63 S.Ct. 529, 87 L.Ed. ___.

SIBLEY, Circuit Judge.

The appellants were convicted of conspiracy to violate the internal revenue laws against possessing and operating unlawful stills, against carrying on the business of liquor dealers without paying the tax, against removing and concealing tax unpaid distilled spirits, and in unstamped packages. The main errors argued are the overruling of a demurrer, of a motion in arrest of judgment, and a motion for instructed verdict.

The indictment contains fifteen counts. Those numbered 1 to 14 inclusive charge offenses other than conspiracy. Since there was acquittal on those counts, their sufficiency need not be examined. The unnumbered conspiracy count is long and subject to criticism. Of the forty-two overt acts charged a number are acts of the officers and of third persons, or mere sayings of a conspirator after arrest. These could not be things done pursuant to the conspiracy and to effect the object of it. But there are many overt acts well charged which will support the count. It is good against demurrer.

The motion in arrest arises thus: Taking the face of the strict record alone, we find an indictment against seven persons containing, as has been said, fifteen counts, one for conspiracy and others numbered 1 to 14, to all of which pleas of not guilty are entered. The verdict reads: "We the jury find Leemon Reece guilty, James Dewey Hipp guilty, Jeffie Homer Heffner not guilty, John Kenny Evans not guilty, Frank Clifford Reece not guilty, Clarence Olden Evans not guilty, James Lester Kincaid not guilty. This the 28th day of October, 1941. Ben J. Massell, Foreman. We the jury find all the defendants not guilty as to counts first through fourteen. This October 28, 1941." It is argued that there are two contradictory verdicts, and that no lawful sentence can be imposed on Leemon Reece and James Dewey Hipp. Verdicts are to have a reasonable construction. The legal intendment of the first part of the verdict, which specifies no count, is to find Reece and Hipp guilty as charged, that is on all counts, and the others not guilty on all counts. The second part of the verdict is confined to the counts numbered First through Fourteen, and finds no guilt as to any one. It does not purport to apply to the conspiracy count which is not numbered in the indictment. It does not contradict the first part of the verdict in so far as the first part finds guilt on the conspiracy count. If we go beyond the face of the strict record and look at the recitals of the judge in his order overruling the motion, and of the bill of exceptions as to what really occurred, we learn that the finding of no guilt on counts numbered 1 to 14 was by direction of the judge, and that only the conspiracy count was submitted for the decision of the jury, so that the first part of the verdict is the only part they really made, and it was...