Weniger v. United States, 6168.

Citation47 F.2d 692
Decision Date23 March 1931
Docket NumberNo. 6168.,6168.
PartiesWENIGER et al. v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Turner, Nuzum & Nuzum, of Spokane, Wash., and O. J. Bandelin, of Sandpoint, Idaho, for appellants.

H. E. Ray, U. S. Atty., and Sam S. Griffin, W. H. Langroise, and Ralph R. Breshears, Asst. U. S. Attys., all of Boise, Idaho.

Before RUDKIN and WILBUR, Circuit Judges, and JAMES, District Judge.

JAMES, District Judge.

Appellants were charged by the indictment in the District Court with having engaged in a conspiracy to violate the National Prohibition Act. Conviction of the offense was followed by judgments of imprisonment. During all of the time that the alleged conspiracy continued, appellant Weniger was the sheriff of the county of Shoshone, in the state of Idaho, and appellant Bloom was a deputy sheriff in the same county. The alleged conspiracy had to do with the selling and dealing in intoxicating liquor in the village of Mullan, which village contained a population of about 3,000 inhabitants and is located seven miles from Wallace, the county seat of Shoshone county, where the sheriff had his office. The deputy Bloom lived in the village of Mullan.

A number of other persons were included as defendants and convicted of the offense charged. Among the latter were persons who had served as members of the board of trustees and police officers of the village. None of the latter appealed from the judgments.

It was the contention of the prosecution, and the evidence shown in the record seems to establish the truth of the charge in that respect, that the city officials of the village of Mullan purposely encouraged and connived at the unlawful sale of liquor within the town by collecting monthly license charges and contributions of money from persons dealing in liquor, in order that the revenue for village upkeep and improvements might be augmented. It was shown, without question, that the city officials did agree that in consideration of the payment of license fees and contributions from liquor sellers, the business of the latter would not be interfered with. It matters not that the ordinances imposing a license tax, as adopted by the board of trustees, might have been within the power of the board to enact. Where the underlying purpose was to use the same in promoting the business of liquor selling in violation of the National Prohibition Act, such purpose, and the conduct of the officers pursuant thereto, would establish the truth of the charge made by the indictment as against the persons so involved.

The evidence of the government was confined to the showing of a violation of the National Prohibition Law within the limits of Mullan. The conspiracy charged was pointed to that locality and that locality alone. Obviously the county officers of the county of Shoshone, of which the sheriff was one, had no jurisdiction of or control over actions of the board of trustees of Mullan, or the police officers working under the direction of said board. So far as the conduct of the village affairs was concerned, the sheriff and his deputy were outsiders with separate and distinct functions having to do not at all with the local business. It is not claimed, nor was it shown, that either of appellants connived with the board of trustees or other village officers in arranging for the collection of the license charges and the money contributions which were collected. This being true, it was necessary that the government show by some substantial evidence the participation by appellants in other ways in the unlawful scheme.

The crime of conspiracy (title 18 U. S. Code, § 88 18 USCA § 88) consists in the combining or confederating of two or more persons with the purpose of committing a public offense. It is distinct from the offense intended to be accomplished as a result of the conspiracy and is complete upon the forming of the criminal agreement and the performing of at least one overt act in furtherance of the unlawful design. U. S. v. Rabinowich, 238 U. S. 78, at page 85, 35 S. Ct. 682, 59 L. Ed. 1211; Callan v. Wilson, 127 U. S. 540, at page 555, 8 S. Ct. 1301, 32 L. Ed. 223; Clune v. U. S., 159 U. S. 590, at page 595, 16 S. Ct. 125, 40 L. Ed. 269.

The failure of a person to prevent the carrying out of a conspiracy, even though he has the power so to do, will not make him guilty of the offense without further proof that he has in some affirmative way consented to be a party thereto. Neither will the commission of an overt act, though unlawful in itself, be enough to show that the actor was a party to the conspiracy. The law requires proof of the common and unlawful design and the knowing participation therein of the persons charged as conspirators before a conviction is justified.

The United States attorney relies largely upon a showing of inaction on the part of the sheriff of the county and his deputy in enforcing the liquor laws as establishing connection of these appellants with the conspiracy charged.

There existed at the time a law in the state of Idaho prohibiting the sale of intoxicating liquor, and no doubt it was the duty of the sheriff to enforce that law. Apparently he was not disposed to do this and apparently, too, this action on his part applied to all parts of his county, and not in particular to the village of Mullan.

We will advert briefly to the most pertinent features of the evidence relied upon by the government to support the conviction of appellants, and also to certain errors assigned respecting the admission of testimony against the appellants' objections. The summary now given is not an abstract of all of the...

To continue reading

Request your trial
11 cases
  • U.S. v. Cadena
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • November 14, 1978
    ...no knowledge of the conspiracy are not conspirators, United States v. Hirsch, 100 U.S. 33, 34, 25 L.Ed. 539, 540; Weniger v. United States, (CCA 9th) 47 F.2d 692, 693; And one who without more furnishes supplies to an illicit distiller is not guilty of conspiracy even though his sale may ha......
  • Flintkote Company v. Lysfjord
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 3, 1957
    ...the object of a conspiracy to which the distiller was a party but of which the supplier had no knowledge"; and on Weniger v. United States, 9 Cir., 47 F.2d 692, at page 693 where this Court "The failure of a person to prevent the carrying out of a conspiracy, even though he has the power so......
  • People v. Blume
    • United States
    • Michigan Supreme Court
    • August 31, 1993
    ...no knowledge of the conspiracy are not conspirators, United States v. Hirsch, 100 US 33, 34 [25 L.Ed. 539 (1879) ]; Weniger v United States, 47 F2d 692, 693 [CA 9, (1931) ]; and one who without more furnishes supplies to an illicit distiller is not guilty of conspiracy even though his sale ......
  • Egan v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • September 9, 1943
    ...shown." In support of this proposition he relies upon United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128; Weniger v. United States, 9 Cir., 47 F.2d 692; United States v. Potash, 2 Cir., 118 F.2d 54; Patterson v. United States, 6 Cir., 222 F. 599; Linde v. United States, 8 Ci......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT