Windsor v. United States

• Decision Date: 09 January 1923
• Docket Number: 3723.
• Citation: 286 F. 51
• Parties: WINDSOR v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Sixth Circuit

286 F. 51

WINDSOR v. UNITED STATES. ^[1]

No. 3723.

United States Court of Appeals, Sixth Circuit.

January 9, 1923

Wm Gordon and A. L. Kreisberg, both of Cleveland, Ohio, for plaintiff in error.

Berkeley W. Henderson, Asst. U.S. Atty., of Cleveland, Ohio (E. S Wertz, U.S. Atty., and D. J. Needham, Asst. U.S. Atty., both of Cleveland, Ohio, on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DONAHUE Circuit Judge.

The plaintiff in error was jointly indicted with Stanley Reikus Adam Slesarumas, alias Saulas, and William Vidugiris. The indictment contained four counts. The first count charged a conspiracy to violate the National Prohibition Law (41 Stat 305); the second, unlawful possession of alcohol; the third, unlawful transportation of distilled spirits; and the fourth, unlawfully and feloniously affixing counterfeit revenue stamps in violation of section 6108 of the Compiled Statutes of the United States.

The first count of the indictment alleged six overt acts committed by the defendants in furtherance of the conspiracy therein charged. It is unnecessary to refer to these, further than to state that one of the overt acts alleged in the indictment averred the unlawful possession of distilled spirits; another, the unlawful transportation of a 10-gallon can of alcohol fit for beverage purposes.

Reikus entered a plea of guilty to the second and fourth counts of the indictment, and the first and third counts were nolled as to him. All the counts in the indictment were nolled as to Slesarumas, alias Saulas. Vidugiris entered a plea of guilty to the second count of the indictment, and was jointly tried with the plaintiff in error and convicted upon the other three counts. The plaintiff in error pleaded guilty to the second count of the indictment, charging unlawful possession, and also to the third count, charging unlawful transportation. The court directed a verdict of not guilty on the fourth count, and the jury returned a verdict of guilty on the first count, charging conspiracy. A motion for new trial was overruled, and sentence imposed.

It is insisted upon the part of the plaintiff in error that the verdict of guilty upon the first count charging conspiracy is not, as to him, sustained by the evidence. While the plea of guilty entered by the plaintiff in error to the second and third counts of the indictment, charging unlawful possession and transportation of intoxicating liquor, does not in any way tend to prove that these offenses were committed in furtherance of a conspiracy between the plaintiff in error and Vidugiris or any other of the codefendants, as charged in the two overt acts to which reference is above made, nevertheless such plea is an admission on the part of the plaintiff in error that he did unlawfully possess and unlawfully transport intoxicating liquors without permit so to do. But, for the purposes of this case, his plea of guilty of these offenses may be wholly disregarded. There is substantial evidence in this record tending to prove that the plaintiff in error was arrested while in possession of 10 gallons of alcohol fit for beverage purposes, and while transporting the same in an automobile that he was driving.

In order to establish that these unlawful acts were committed by the defendants Windsor and Vidugiris in furtherance of a conspiracy to violate the provisions of the National Prohibition Act, the government is not required to furnish direct proof of the unlawful plan or agreement entered into by the conspirators. This court held in Davidson et al. v. U.S., 274 F. 285, that a verdict of guilty of conspiracy may be sustained by evidence showing a concert of action in the commission of an unlawful act or by proof of other facts and circumstances from which the natural inference arises that the unlawful overt act was in furtherance of a common design, intent and purpose of the alleged conspirators.

No claim was made, nor was any evidence offered tending to prove, that these defendants or either of them had a permit to possess or transport intoxicating liquor. Kiersky v. U.S. (C.C.A.) 263 F. 684; Faraone v. U.S., 259 F. 507, 170 C.C.A. 483. Such a claim or such evidence would be wholly inconsistent with the plaintiff in error's plea of guilty to the counts in the indictment charging unlawful possession and unlawful transportation. Two police officers testified that when the arrest was made the plaintiff in error was driving the automobile containing this 10 gallons of alcohol fit for beverage purposes; that Vidugiris was riding with him in this automobile, and when arrest was attempted fled from the officers, and was not apprehended and placed under arrest until some time later. The testimony of the two police officers as to the facts and circumstances under which the arrest of the plaintiff in error and Vidugiris was made, if believed by the jury, is sufficient to sustain the verdict finding these two defendants guilty of conspiracy as charged in the first count of this indictment.

While both of these defendants testified that they had not entered into any conspiracy, and had not engaged in a joint enterprise in the commission of the unlawful acts charged nevertheless their testimony does not harmonize with the other evidence in this case, including the result of the search of their respective residences. At best their testimony presents only a conflict in the evidence. The credibility...