Baker v. United States

• Decision Date: 18 October 1927
• Docket Number: No. 2628.,2628.
• Citation: 21 F.2d 903
• Parties: BAKER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

21 F.2d 903 (1927)

BAKER v. UNITED STATES.

No. 2628.

Circuit Court of Appeals, Fourth Circuit.

October 18, 1927.

Lester S. Parsons, of Norfolk, Va. (Venable, Miller, Pilcher & Parsons, of Norfolk, Va., on the brief), for plaintiff in error.

Paul W. Kear, U. S. Atty., and Alvah H. Martin, Asst. U. S. Atty., both of Norfolk, Va.

Before PARKER and NORTHCOTT, Circuit Judges, and ERNEST F. COCHRAN, District Judge.

NORTHCOTT, Circuit Judge.

In June, 1925, one Bernard M. Reaves came to Norfolk, Virginia, and entered into negotiations with Mr. A. G. Bailey, a local manager for the firm of Castner, Curran & Bullitt, for the chartering of a boat, to be used in coastwise trade. As a result of these negotiations, on July 18, 1925, Reaves chartered the steamship Corsica for a period of six months, took possession of the boat, and had her placed and loaded with coal. After the loading and just before leaving the coal dock, the plaintiff in error, who will be referred to here as the defendant, came aboard the boat and took charge of her as master. The papers of the boat show that defendant C. M. Baker, was captain and master of the vessel, and B. M. Reaves, first officer; but upon the voyage it seems that one Artie Baker acted as first mate. Reaves did not accompany the boat when it left Norfolk, but joined it after it reached Bath, Me., where the coal with which it was loaded was discharged.

Reaves then came on board accompanied by two strangers, and shortly after leaving Bath, various officers and members of the crew were sent for and brought to the captain's room, where in the presence of the defendant, C. M. Baker, Reaves, and the two strangers, they were informed that the boat was to be used for rum running, in violation of the prohibition laws of the United States, and asked if they would join in the enterprise. Different officers and members of the crew were offered a bonus for engaging in the illegal transaction. As there seemed to be no objection on the part of anybody, the vessel then started out in search of a certain rum ship. After looking around for a day or two, and failing to find the ship they were looking for, they put into Boston. Leaving Boston, the Corsica again went out looking for the rum ship, which they found off the coast of Nova Scotia. The cargo, consisting of 4,600 cases of various kinds of liquor, was taken on board, and delivered and landed at Oyster Bay, N. Y. It took two nights to unload the cargo in the United States, the work of the unloading being suspended during the daytime. The Corsica then returned to Newport News, where she arrived on August 16, 1925, and where the boat was seized by the agents of the owners. Upon a search of the vessel, 16 quarts of liquor were found as well as numerous broken cases and wrappings for bottles.

In May, 1926, Bernard M. Reaves, the defendant, Charles M. Baker, and Mate Artie Baker, were jointly indicted in the United States District Court for the Eastern District of Virginia, charged with a conspiracy to violate the National Prohibition Act (27 USCA), under section 37 of the Criminal Code (18 USCA § 88), and, Artie Baker not being in custody, the defendants, Charles M. Baker and Reaves, were tried on May 4, 1926. No evidence was offered on behalf of the defendants and the trial resulted in a verdict of guilty, and the defendant, Charles M. Baker, was sentenced to be imprisoned, to which judgment of the trial court the defendant, Charles M. Baker, sued out this writ of error. A demurrer was filed to the indictment below, but upon the argument here that point was abandoned by defendant's counsel. The indictment was clearly sufficient.

The second assignment of error is based upon the refusal of the motion for a continuance, said motion being based upon the fact that the indictment was found on May 3, 1926, and the case called for trial on the following day, May 4, and that the defendant had not had an opportunity to prepare a defense. No other grounds for a continuance were presented. This court in the case of Pocahontas Distilling Co. v. United States, 218 F. 782, has stated the general rule with respect to motions for continuance to be that such motions are "addressed to the discretion of the trial court," and that their denial "constitutes ordinarily no ground for the reversal of a judgment."

"That the action of the trial court upon an application for a continuance is purely a matter of discretion, and not subject to review by this court, unless it be clearly shown that such discretion has been abused, is settled by too many authorities to be now open to question." Isaacs v. United States, 159 U. S. 487, 16 S. Ct. 51, 40 L. Ed. 229, and authorities there cited.

It appears that the indictment found on May 3, 1926, was returned in order to correct some errors in an indictment that had been previously returned charging the defendant with substantially the same offense, and to which indictment the defendant had entered an appearance. Notice had been given to prepare for trial. There was no abuse of discretion.

The third assignment of error charges that the court erred in permitting the government to proceed irregularly in the presentation of its evidence. In the case of Fisher v. United States, 2 F.(2d) 843, this court said: "It hardly need be said that a conspiracy is often proved by the overt act. The fact that two men are found together breaking into a bank is indubitable proof that they had agreed to commit the burglary."

"The order in which testimony shall be admitted is largely within the discretion of the trial court." Thiede v. Utah, 159 U. S. 510, 16 S. Ct. 62, 40 L. Ed. 237.

We cannot see any merit in this contention. The story as told by the evidence began with the opening of negotiations for the charter of the boat, and ended with the boat's seizure on its return to Norfolk. It is hard to see how the evidence could have been presented by the prosecution in a more proper sequence.

The fourth assignment of error refers: (a) To the admission of evidence with respect to whether or not the boat could have been operated profitably in a legitimate coastwise trade. We think this was a proper matter of inquiry. (b) As to the evidence concerning negotiations with Reaves for the purchase of coal for the rum-running voyage. We think that also was proper. (c) The conversation had with Crawford, the agent of the Department of Justice, by defendant, Baker. This was clearly admissible, as the statements of the defendant were not induced by threats or promises, were purely voluntary, and were admissions tending to prove his guilt. (d) The evidence as to the finding of the 16 bottles on board the Corsica upon its seizure, on returning to Norfolk. This was also admissible as tending to prove the truth of statements made by government witnesses as to the handling of the 4,600 cases of liquor on the boat.

The fifth and sixth assignments of error relate to the action of the court in overruling the motion for a direction of a verdict of not guilty at the end of the testimony on behalf of the prosecution, and in again overruling a similar motion on behalf of the defendant, Charles M. Baker, alone.

"It has been decided that, if the conspiracy be entered into within the jurisdiction of the trial court, the indictment will lie there, though the overt act is shown to have been committed in another jurisdiction, or even in a foreign country." Hyde v. Shine, 199 U. S. 62, 25 S. Ct. 760, 50 L. Ed. 90. See, also, Dealy v. United States, 152 U. S. 539, 14 S. Ct. 680, 38 L. Ed. 545; In re Palliser, 136 U. S. 257, 10 S. Ct. 1034, 34 L. Ed. 514.

"The rule of responsibility for the acts of co-conspirators includes acts done before the defendant joined the conspiracy, as well as the acts subsequent to his participation." 5 R. C. L. 1064, and cases there cited.

"One joining a conspiracy after its formation, by contributing to its carrying out with knowledge thereof, would be liable." Rudner v. United States (C. C. A.) 281 F. 516; Thomas v. United States (C. C. A.) 156 F. 897, 17 L. R. A. (N. S.) 720; Lincoln v. Claflin, 7 Wall. 132, 19 L. Ed. 106.

"But one may join a conspiracy after it has been formed, and, if he participates knowingly, he becomes a party thereto just as though he conceived the plot. One actor may drop out of the scene altogether, and another take his place, without the conspiracy terminating." Allen v. United States (C. C. A.) 4 F.(2d) 688.

"An overt act need not be proved against all the members of a conspiracy." Bannon v. United States, 156 U. S. 464, 15 S. Ct. 467, 39 L. Ed. 494.

"To sustain a charge of conspiracy, the government need not furnish direct proof of the...