Tinsley v. United States, 8796.

• Citation: 43 F.2d 890
• Decision Date: 26 September 1930
• Docket Number: No. 8796.,8796.
• Parties: TINSLEY et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

43 F.2d 890 (1930)

TINSLEY et al. v. UNITED STATES.

No. 8796.

Circuit Court of Appeals, Eighth Circuit.

September 26, 1930.

Harry P. Atwater, of Sturgis, S. D. (Percy H. Helm, of Sturgis, S. D., on the brief), for appellants.

Byron S. Payne, Asst. U. S. Atty., of Pierre, S. D. (Olaf Eidem, U. S. Atty., and Frank G. McCormick, Asst. U. S. Atty., both of Sioux Falls, S. D., on the brief), for the United States.

Before KENYON, BOOTH, and GARDNER, Circuit Judges.

KENYON, Circuit Judge.

Appellants, Chester B. Tinsley, William Shepherd (Shepard), and John Reed, were indicted, together with Paul Widow and Philip Lone Eagle, in the District Court of the United States for South Dakota, on eight counts. The first seven counts charged the larceny of certain horses within the boundaries of the Cheyenne Indian Reservation. The eighth count charged a conspiracy to do the things alleged in the first seven counts. The conspiracy count is based upon section 37 of the Criminal Code (18 USCA § 88); the other counts on section 329 of the Criminal Code (18 USCA § 549), which relates to crimes committed on Indian reservations in South Dakota.

Upon motion of the district attorney during the trial the indictment was nolle prossed as to Paul Widow and Philip Lone Eagle.

At the close of the evidence a motion was submitted on behalf of defendants Reed and Shepherd to direct the jury to return a verdict of not guilty, because of the insufficiency of the evidence to establish guilt on the various counts, emphasizing especially a want of evidence to connect Shepherd and Reed with any conspiracy. This motion was denied.

The jury found appellants guilty as charged in the indictment. No separate verdicts on different counts were rendered, but under the instructions of the court the jury could have convicted or acquitted on any separate count. The verdict therefore stands as one of guilt on every count. The sentences meted out by the court were more severe as to Tinsley than as to the other appellants.

We consider first the question of the sufficiency of the evidence to establish the conspiracy charged in count 8.

Where two or more persons enter into an agreement to commit a crime against the United States, and in pursuance thereof an overt act is done to effect the object of the agreement, an indictable conspiracy is established. Fisher v. United States (C. C. A.) 2 F.(2d) 843; Baker v. United States (C. C. A.) 21 F.(2d) 903; Eddington v. United States (C. C. A.) 24 F.(2d) 50; Stephens et al. v. United States (C. C. A.) 41 F.(2d) 440; Williamson v. United States, 207 U. S. 425, 28 S. Ct. 163, 52 L. Ed. 278.

In Linde et al. v. United States, 13 F.(2d) 59, 61, this court has gone pretty thoroughly into the question of conspiracy. It was held there that where defendants were charged with being parties to a general plan or conspiracy having as its object the introduction of stolen cars from without the state for the purpose of disposition and sale, the evidence must convince that they did something more than participate in the substantive offense which was the object of the conspiracy. The court said, "There must, in addition thereto, be proof of the unlawful agreement, and in this case, in our judgment, that proof is insufficient," citing a number of cases. In Graham v. United States, 15 F.(2d) 740, 742, this court discusses the question of the sufficiency of the evidence to show conspiracy, and points out that conspiracy is a distinct offense from the crime which may be the object of the conspiracy, and states that "there must be shown to be a combination or understanding, tacit or otherwise, to violate a federal statute." It was held the evidence was not sufficient to show a conspiracy, although one or more of the defendants were guilty of overt acts, but that two or more did not conspire to commit them. In a conspiracy there must be some unity of purpose, some common design and understanding, some meeting of minds in an unlawful arrangement, and then to make the conspiracy a crime the doing of some overt act to effect its object. A person does not become a part of a conspiracy by knowledge that another is about to commit a crime, or necessarily by an acquiescence in the crime.

There may be certain connections of defendants with transactions claimed to be criminal which would come under the reference of Justice Holmes in United States v. Holte, 236 U. S. 140, 35 S. Ct. 271, 272, 59 L. Ed. 504, L. R. A. 1915D, 281, to wit, a "degree of cooperation that would not amount to a crime." Such degree of co-operation might be approval or even encouragement, inactive acquiescence, and other matters which did not enter into the real plan or design of the alleged conspirators. Hyde and Schneider v. United States, 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; United States v. Heitler et al. (D. C.) 274 F. 401.

Tinsley without question was the main offender in the atrocious business of having horses stolen by those employed to do so (evidently ignorant Indians), then killing the horses, skinning them, and feeding the carcasses to his hogs. He had been accustomed, according to the evidence, to utilize horses to feed his hogs, and the testimony shows that he purchased many horses for that purpose. The evidence here, which it might be argued shows a conspiracy, was that furnished by Paul Widow and Philip Lone Eagle. The evidence of Philip Lone Eagle, a Sioux Indian, was that Tinsley employed him to get any kind of horses he could from the reservation, to bring them to his ranch on stormy days or during the night; that he was to be paid $2 or $2.50 a head therefor; that if he got caught stealing horses Tinsley would back him up and help him out; that he did steal a large number of horses, which were delivered to Tinsley, who butchered them, cut them up, and put them in the feed lot; that part of his pay was in whisky.

Paul Widow, an Indian from the Cheyenne River Indian Reservation, testified that he was employed by Tinsley to pick up unbranded horses and deliver at Tinsley's place, for which he was to receive $2 per head. Tinsley gave him the same instructions that he gave to Lone Eagle, and warned him to keep his mouth shut, that he would protect him, and if he gave out any information as to what Tinsley was doing on his place he would be a dead Indian. Under his arrangement with Tinsley Paul Widow stole a large number of horses on the Cheyenne Indian Reservation, delivered them in the night or on rainy days to Tinsley's ranch, and helped butcher them. The part of the animal bearing the brand would be cut out and cut up into small strips and thrown into the hog lot. While Paul Widow and Philip Lone Eagle did a large business in stealing horses for Tinsley, there is no evidence in the record to connect them in the work each was respectively doing. They were not working together or carrying out any arrangement to which both were parties. There is no evidence to show that Philip Lone Eagle had any knowledge whatever of the arrangement which Tinsley had with Widow or that Widow knew of Tinsley's arrangement with Philip Lone Eagle, nor is there anything to connect Shepherd and Reed with participation in any conspiracy between Tinsley, Philip Lone Eagle, and Paul Widow. The enterprise seems to have been a one-man affair, established by Tinsley and carried on by him with the aid of other parties. We are forced to the conclusion that the evidence does not show any mutual understanding or plan whereby appellants and Paul Widow and Philip Lone Eagle were to co-operate in the stealing of horses from the Indian Reservation, nor that the minds of these parties met understandingly to carry out a deliberate agreement to commit the larcenies charged in the indictment. The evidence does tend to show a conspiracy between Tinsley and Widow, and a conspiracy between Tinsley and Philip Lone Eagle, but they are separate and distinct conspiracies and not the conspiracy charged in the indictment. This is not sufficient. Terry v. United States (C. C. A.) 7 F.(2d) 28; Wyatt et al. v. United States (C. C. A.) 23 F. (2d) 791; Stubbs v. United States (C. C. A.) 249 F. 571.

The evidence is insufficient to warrant the conviction of Shepherd and Reed on the eighth or conspiracy count, and their motion at the close of the evidence to instruct a verdict of not guilty should have been sustained as to that count.

Even though no motion was made by Tinsley for an instructed verdict, as the evidence was insufficient to sustain the conspiracy count of the indictment, we are compelled to hold that his conviction on that count cannot stand. 5 Ruling Case Law, p. 1078, § 23; Williamson v. United States, 207 U. S. 425, 28 S. Ct. 163, 52 L. Ed. 278.

It is urged that the court erred in not sustaining a motion to strike all evidence of certain witnesses as to the stealing of horses not described in the indictment; also evidence as to bones, hides, and as to the barter of liquor by Tinsley; also that certain exhibits which were introduced should have been stricken, one exhibit particularly being the list or description of the hides and brands, together with statement of the witness Brewer as to whether the brands had been slashed or mutilated; that this exhibit included animals and hides not charged in the indictment, and was evidence of other larcenies, and that as no conspiracy was shown all of such evidence should have been excluded. While this motion made at the close of the evidence does not point out the particular evidence to be stricken, and is entirely too general for consideration by an appellate court, we have, in view of the importance of the case, considered the same and think most of said evidence sought to be excluded was admissible, even absent the theory of conspiracy.

The law is well settled as to the introduction of evidence of other offenses in the trial of a criminal case, and this court has many times expressed itself thereon. If no...