Bacon v. United States, 2427.

• Decision Date: 06 May 1942
• Docket Number: No. 2427.,2427.
• Citation: 127 F.2d 985
• Parties: BACON v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

127 F.2d 985 (1942)

BACON v. UNITED STATES.

No. 2427.

Circuit Court of Appeals, Tenth Circuit.

May 6, 1942.

W. F. Rampendahl, of Muskogee, Okl., for appellant.

Frank Watson, Asst. U. S. Atty., of Muskogee, Okl. (Cleon A. Summers, U. S. Atty., of Muskogee, Okl., on the brief), for appellee.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

Bentley B. Bacon, Doyle Gordon and Milton Tarver were convicted, and Irwin W. Fox pleaded guilty, in the District Court of the United States for the Eastern District of Oklahoma on both counts of an indictment. The first count charged them with conspiracy to import intoxicating liquor into the State of Oklahoma in violation of 27 U.S.C.A. § 223. The second count charged them with transporting and importing intoxicating liquor containing more than four per cent of alcohol into Oklahoma. Bacon was placed on probation for a period of three years on the first count, and sentenced to imprisonment in an institution of the jail type, to be designated by the Attorney General, for a period of six months, and to pay a fine of $250 on the second count. He has appealed.

The government relied largely on the testimony of Fox to establish the conspiracy and Bacon's connection therewith. Fox testified, in substance, that in 1940 he decided to haul some whiskey; that a bus driver gave him a card with a man's name on it in a pool hall in Oklahoma City; that he passed the card to Gordon and told him he wanted some whiskey; that Gordon said "O. K." and kept the card. He testified that he had a Texas license for his car on the first trip he made after whiskey because Gordon had told him he would have to have a Texas license before he would let him have whiskey. It does not clearly appear when or where he had the conversation with Gordon regarding the Texas license; presumably it was before he went after the first load, because he then had the license. He made seven or eight trips after whiskey. The first time he bought twelve cases. Gordon told him to drive in the back and he drove in. Gordon loaded the whiskey and opened the door and said he would look around to see if there were any "laws." Sometimes Gordon was present and at other times Tarver was there. At times, both Tarver and Gordon would be there. He talked to Bacon only once. He does not remember just when, but thinks it was on the first trip. Bacon asked him how things were in Oklahoma and how the whiskey business was.

Gordon denied telling Fox that he would have to have a Texas license before he sold him whiskey. He denied telling him that he would "look to see if there were any laws." He testified that he worked for Bacon on a weekly salary of $14; that he received no commissions on sales; that Fox came to the store in November and asked the price of whiskey; that he asked him where he lived and he replied "Texas"; that he asked Fox where in Texas, and that he grinned and said, "There is my car. I have a Texas license on it"; that he sold him eight or ten cases; that many of their customers wanted their whiskey wrapped in lugs so they could haul more whiskey; that Bacon instructed him and Tarver to sell whiskey to anyone from Texas, but not to persons from Oklahoma; that he looked for approaching traffic.

Tarver testified that he sold Fox whiskey three or four times; that he never asked him where he was from; that Bacon had instructed him and Gordon not to sell whiskey to anyone unless he lived in Texas; that the door of the loading room was flush with the alley and that there was a great deal of traffic in the alley.

It fairly appears that Bacon knew that Fox was from Oklahoma, that his employees were selling him whiskey, and that he had reason to know that Fox was taking the whiskey to Oklahoma. But one does not become a conspirator, nor is he chargeable as a co-conspirator, simply because he sells material or merchandise knowing that it will be used for an unlawful purpose. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128.

There can be no conspiracy without an agreement between two or more persons to violate the law. The gist of the offense of conspiracy is an agreement among the conspirators to commit an offense, attended by an overt act of one or more of the conspirators to effect the object of the conspiracy. United States v. Falcone, supra; Hudspeth v. McDonald, 10 Cir., 120 F.2d 962. Ordinarily such an agreement is not established by direct testimony. Men who conspire to violate the law do not generally reduce their agreement to writing nor seal their unlawful contract in the presence of attesting witnesses. It is generally necessary to establish a conspiracy by circumstances and conclusions that reasonably flow from the conduct of the conspirators, but the conspiracy must nevertheless be established by competent...