Young v. United States, 5959.

Decision Date10 April 1931
Docket NumberNo. 5959.,5959.
Citation48 F.2d 26
PartiesYOUNG et al. v. UNITED STATES.
CourtU.S. Court of Appeals — Fifth Circuit

John B. McNamara, of Waco, Tex., Edwin H. Grace, of New Orleans, La., Allan D. Sanford, of Galveston, Tex., and A. L. Curtis, of Belton, Tex. (Lovett & Lovett, of Corsicana, Tex., on the brief), for appellants.

John D. Hartman, U. S. Atty., of San Antonio, Tex.

Before BRYAN, FOSTER, and WALKER, Circuit Judges.

BRYAN, Circuit Judge.

The indictment in this case charges a conspiracy to sell, and possess for sale, utensils and substances, including corn chops, sugar, fruit jars, and charred barrels, designed and intended for use in the unlawful manufacture of intoxicating liquor; and to manufacture, possess, sell, and transport intoxicating liquor for beverage purposes. The appellants, McDaniel, Young, Coates, Lee, Franklin, and Campbell, were convicted as charged. Evidence for the government tended to show that McDaniel, manager of a wholesale business at Corsicana, Tex., sold large quantities of the above articles described in the indictment to Young and Coates, and made deliveries at the village or town of Young, where Young and Coates had adjoining retail stores, with a connecting door, in the same building.

Young and Coates sold the articles purchased from McDaniel at retail. Lee, Franklin, and Campbell were among their customers, and each of them made individual purchases, but there was no proof that they were acting in concert. It was not directly shown that any of the articles thus sold were used in connection with the manufacture of liquor, although there were many illicit distilleries in the neighborhood. The most that can be claimed by the government is that the circumstantial evidence was sufficient to show that McDaniel, Young, and Coates knew that the articles in question were being bought from Young and Coates by persons who intended to use them in connection with the unlawful manufacture of liquor.

We are of opinion that this evidence was insufficient to prove the conspiracy alleged. McDaniel, the seller, could not have been a coconspirator with Young and Coates, the purchasers, upon proof simply that he made sales to them; and in turn Young and Coates, whether acting individually or as partners, could not upon similar proof have been coconspirators with those who purchased from them at retail. There must have been a conspiracy to do something unlawful after the sales were made in order to sustain the indictment. United States v. Katz, 271 U. S. 354, 46 S. Ct. 513, 70 L. Ed. 986. In Edenfield v. United States (C. C. A.) 8 F.(2d) 614, there were three indictments, each containing two counts; the first count charging a conspiracy to manufacture liquor, and the second to manufacture liquor without making a permanent record. Edenfield was convicted and sentenced on both counts of each indictment. The judgment was affirmed in toto by this court in a memorandum opinion, which, while recognizing the principle of law that there must be evidence beyond proof of sale, stated that "the evidence for the government tended to show that plaintiff in error furnished to his codefendants copper and other materials to be used in making a still, as well as sugar and meal to be used in the manufacture of liquor." The case was reversed by the Supreme Court because of the conviction on the second set of counts which charged conspiracy to manufacture liquor without making a permanent record, on the authority of the Katz Case, supra; and it was remanded to the district court for resentence on the first counts. 273 U. S. 660, 47 S. Ct. 345, 71 L. Ed. 827. It is to be conceded, therefore, that the evidence was held by the Supreme Court to be sufficient to sustain the first count of each indictment. But the record in Edenfield's Case affirmatively shows, though the memorandum opinion does not, that he not only made the sales, but, after they were made, that he actively participated in manufacturing the stills, in locating them in places where it was unlikely that they would be found, and in disposing of the liquor after it was manufactured; and so we held that the jury was authorized "to infer an agreement to do what was actually done."

There is no similar proof here, but the evidence stops with the sales. The conviction of the sellers cannot be sustained on the ground that they had knowledge of the intention of the purchasers to use the sugar and other articles in connection with the unlawful manufacture of liquor. One cannot be held as a member of a conspiracy upon proof merely that he had knowledge of, or negatively acquiesced in, a crime that was about to be committed; but, in order to fasten guilt upon one accused of being a coconspirator, it is necessary to prove that he actively participated in the conspiracy charged. Bishop's Criminal Law (9 Ed.) § 633; 5 R. C. L. 1065; McDaniel v. United States (C. C. A.) 24 F.(2d) 303. There was no evidence that Lee, Franklin, and Campbell were acting in concert; for all that appears, each was acting only for himself. The conspiracy charged was...

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13 cases
  • United States v. Harrison
    • United States
    • U.S. Court of Appeals — Third Circuit
    • June 24, 1941
    ...736. 7 The minority: Di Bonaventura v. United States, 4 Cir., 15 F.2d 494; United States v. Russell, D.C., 41 F.2d 852; Young v. United States, 5 Cir., 48 F.2d 26; United States v. Peoni, 2 Cir., 100 F.2d 401, noted in Application of Conspiracy Statute to Prosecution For Sale of Counterfeit......
  • Lott v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 20, 1955
    ...by stipulation filed in that court, or that court may dismiss the appeal upon motion and notice by the appellant." 2 Citing Young v. United States, 5 Cir., 48 F.2d 26; United States v. Katz, 271 U.S. 354, 46 S.Ct. 513, 70 L.Ed. 986; See also Lambert v. United States, 5 Cir., 101 F.2d 960, a......
  • Davis v. State
    • United States
    • Mississippi Supreme Court
    • March 12, 1986
    ...fashion, participated in it as something that he wished to bring about, or sought by his action to make it succeed. Young v. United States (5th. Cir.1931) 48 F.2d 26, United States v. Peoni, (2nd. Cir.1938) 100 F.2d 401, Looking to the facts singly or in combination with others, it appears ......
  • U.S. v. Klein, s. 75-2023
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 14, 1977
    ...one accused of being a co-conspirator it is necessary to prove that he actively participated in the conspiracy charged. Young v. United States, 5 Cir. 1931, 48 F.2d 26. Mere association with conspirators is not enough to establish participation in the conspiracy. Roberts v. United States, 5......
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