151 F.2d 499 (5th Cir. 1945), 11379, Pinkerton v. United States

Docket Nº:11379.
Citation:151 F.2d 499
Case Date:October 30, 1945
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 499

151 F.2d 499 (5th Cir. 1945)




No. 11379.

United States Court of Appeals, Fifth Circuit.

October 30, 1945

Rehearing Denied Dec. 1, 1945.

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

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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...

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