Perry v. United States, 5634.

• Decision Date: 21 March 1930
• Docket Number: No. 5634.,5634.
• Citation: 39 F.2d 52
• Parties: PERRY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

39 F.2d 52 (1930)

PERRY et al. v. UNITED STATES.^*

No. 5634.

Circuit Court of Appeals, Fifth Circuit.

March 21, 1930.

Ion L. Farris, M. H. Myerson, and Jno. W. Dodge, all of Jacksonville, Fla., and Frank L'Engle, of Jacksonville, Fla., for appellant Satinover.

J. V. Walton, of Palatka, Fla., and H. A. Henderson, of St. Augustine, Fla., for appellant Capo.

W. P. Hughes, U. S. Attorney, of Jacksonville, Fla., and John F. Coldiron, Sp. Asst. to the Atty. Gen.

Before BRYAN and FOSTER, Circuit Judges, and DAWKINS, District Judge.

FOSTER, Circuit Judge.

Appellants, Charles Perry, Charles L. Miller, J. C. Nichols, Eddie Satinover, Joe Capo, Hans Casperson, and William Odom, were convicted of conspiring to commit an offense against the United States. Error is assigned to the overruling of a demurrer to the indictment.

The indictment, in apt language, charges appellants, together with seventeen other named persons and parties unknown, with conspiring to import and bring into the United States intoxicating liquors containing more than one-half of 1 per cent. of alcohol by volume, for beverage purposes, by receiving the said intoxicating liquors, from the cargo of vessels lying on the high seas, off the east coat of Florida, into small boats, and transporting same by means of said small boats from a point on the high seas to a point or points at or near St. Augustine, Fla., and unloading and landing the same. The said acts are charged to be unlawful and prohibited by the provisions of the National Prohibition Act (27 USCA) and section 593, subd. (b) of the Tariff Act of 1922 (19 USCA § 497). Four overt acts are alleged to have been committed by some of the conspirators, but neither all of those charged with the conspiracy nor all of those convicted are named as having participated in the overt acts.

It is contended that the indictment fails to charge an offense; that it fails to allege facts sufficient to support the allegation of importing, as it is not alleged the liquor was of foreign manufacture or brought in from a foreign country; that to "bring in" intoxicating liquor for beverage purposes is not an offense under the National Prohibition Act.

An indictment for conspiracy to commit an offense may allege the object of the conspiracy with less detail than would be necessary in charging the substantive offense. Thornton v. U. S., 271 U. S. 414, 46 S. Ct. 585, 70 L. Ed. 1013. An indictment that charges a conspiracy to commit two separate offenses against the United States is not bad for duplicity, as conspiracy is a single offense. Ford v. U. S., 273 U. S. 593, 47 S. Ct. 531, 71 L. Ed. 793. It is not necessary that each of the defendants charged should have participated in all or any of the overt acts. It is sufficient to aver that one or more of them committed those acts. Bannon v. U. S., 156 U. S. 464, 15 S. Ct. 467, 39 L. Ed. 494. It is an offense in violation of the National Prohibition Act, § 3, tit. 2 (27 USCA § 12) to "import" intoxicating liquor for beverage purposes. In this connection the word "import" must be given its ordinary meaning. The transportation from without the country, through the territorial waters of the United States, and the subsequent landing in the country, is importation within the meaning of the National Prohibition Act. Cunard S. S. Co. v. Mellon, 262 U. S. 101, 43 S. Ct. 504, 67 L. Ed. 894, 27 A. L. R. 1306. We think the indictment was sufficient.

Error is assigned to the refusal of the trial court to direct a verdict for appellants at the close of the evidence. Without attempting to review it in detail, it is sufficient to say that there was evidence before the jury tending to show that Miller had employed one Iver H. Olsson as master of the motorboat Vera to transport liquor from different vessels on the high seas, that a number of trips were made on which intoxicating liquor was brought in, and that all the defendants convicted, at one time or another, during the period covered by the conspiracy, were interested in these trips. It is argued that the evidence tends to show a number of separate conspiracies as to each trip and not one general conspiracy. We think the evidence, if believed by the jury, was sufficient to support the conclusion that all of the defendants convicted were engaged in a common enterprise as alleged in the indictment.

Other assignments of error are without merit and need not be discussed.

We are called upon to consider a petition filed on behalf of Joe Capo, alleging that, after petitioner had taken the necessary steps to perfect his appeal, and after the District Court had lost jurisdiction, he...