Pinkerton v. United States, 11379.
| Citation | 151 F.2d 499 |
| Decision Date | 01 December 1945 |
| Docket Number | No. 11379.,11379. |
| Parties | PINKERTON et al. v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Reuben L. Newton, Pennington & Tweedy, and J. J. Curtis, all of Jasper, Ala., for appellants.
Jim C. Smith, U. S. Atty., of Birmingham, Ala., for the United States.
Before SIBLEY and McCORD, Circuit Judges, and KENNAMER, District Judge.
Walter and Dan Pinkerton, appellants, with other named defendants who are not parties to this appeal, were indicted by a grand jury on ten substantive counts and one conspiracy count for violations of the Internal Revenue Laws of the United States of America. Demurrer was filed by both appellants to the indictment, which demurrer was overruled by the trial judge. A plea in abatement was filed by Dan Pinkerton as to counts 1, 2, and 4, of the indictment, and was sustained. A plea in abatement by both appellants to count 11 of the indictment was overruled. The trial court submitted the case to the jury on all counts of the indictment as to Walter Pinkerton; and on counts 3, 5, 6, 7, 8, 9, 10, and 11 as to Dan Pinkerton.
A jury verdict of guilty on all counts of the indictment except count 7 was returned against Walter Pinkerton, and against Dan Pinkerton on counts 3, 5, 6, 8, 9, 10, and 11.
Each of the defendants was given a prison sentence and fine, and both have appealed.
The appellee, United States of America, filed a motion to dismiss appellants' appeal in this court on the ground that the notice of the taking of the appeal was filed too late. Due to the peculiar facts relating to the filing of the notice of the taking of the appeal, and since the case is being affirmed on the merits, the court makes no decision on the motion to dismiss the appeal; it being the view of the court that in such action the appellee obtains the same result as it seeks by the motion to dismiss the appeal, and there is no injury to the appellants.
Counts 1 and 10 of the indictment were barred by the statute of limitations of 3 years and the demurrer as to these counts should have been sustained.
Counts 2, 3, 4, 5, 6, 8, and 9 of the indictment charge that the appellants did unlawfully remove, deposit and conceal certain commodities, namely, a large quantity of distilled spirits, naming the quantity in each count, whereof a tax was then and there imposed by the laws of the United States, with intent then and there to defraud the United States of such tax.
Numerous assignments of error are made by the appellants and, although none are waived, certain ones are called specially to the attention of the court. The assignments of error which go to the question of the defendant Walter being guilty under the substantive counts of the indictment for which the defendant Dan had plead guilty and with which he had nothing to do; or the defendant Dan being guilty under certain substantive counts of the indictment while in the penitentiary; or that both of these defendants could not be found guilty in either of the first ten counts of the indictment, as each count charges a separate offense and on the trial were treated as separate indictments, and that the testimony that would show one of the appellants committed the offense in one count, would show that the other appellant had nothing to do with it, are not sustained in law and are without merit.
The appellants, as disclosed by the record, are brothers. They reside about two hundred yards from each other, on the same side of the highway, on a farm which was owned by Dan Pinkerton. There was a pathway connecting their houses, and there was frequent association between the two. On one occasion when officers of the law were making an investigation at Dan Pinkerton's place, Walter Pinkerton drew a gun on the sheriff and threatened to kill him. Whenever Walter Pinkerton was arrested in the State courts of Fayette...
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