Barrett v. United States

• Decision Date: 04 March 1925
• Docket Number: No. 4334.,4334.
• Citation: 4 F.2d 317
• Parties: BARRETT v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

4 F.2d 317 (1925)

BARRETT v. UNITED STATES.

No. 4334.

Circuit Court of Appeals, Sixth Circuit.

March 4, 1925.

Allen J. Seney, of Toledo, Ohio, for plaintiff in error.

Dana L. Sears, Asst. U. S. Atty., of Toledo, Ohio.

Before DENISON, DONAHUE, and KNAPPEN, Circuit Judges.

KNAPPEN, Circuit Judge.

Plaintiff in error and three others¹ were convicted upon counts 1 and 4 of an indictment, the first count charging a conspiracy under section 37 of the Penal Code (Comp. St. § 10201), unlawfully to possess and sell intoxicating liquors of prohibited alcoholic content and fit for beverage purposes, and to maintain a common nuisance forbidden by the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.); the fourth count charging the substantive offense of maintaining a common nuisance as defined by section 21 of title 2 of the act. All four defendants were convicted upon the first and fourth counts; Payne having pleaded guilty to the second, third, and fourth counts, and the second and third being later quashed on motion of plaintiff in error. The only criticisms urged here relate to an alleged insufficiency of evidence to support conviction and to the charge of the court.

We think there was evidence enough to sustain the conviction of plaintiff in error. There was testimony that on January 23, 1924, when the place in question was raided by the prohibition agents, unlawful selling of liquor was found in full operation; that plaintiff in error had then been there about an hour; that all four defendants were there; that Blackburn was filling a bottle with "illicit whisky"; that plaintiff in error was standing "up against a sort of counter," with a "handful of money" or "a handful of change in his hand," which he was "jingling" or counting (or moving up and down the hand containing the money), to use the phrases of different witnesses, one of whom said that some of the money was lying "on the counter or dresser or something, and it appeared that he Barrett was counting the money." There was also testimony that, when the agents had seized about two gallons of whisky, and were searching for more liquor, plaintiff in error said: "There is no more liquor here. You have it all." Payne and Blackburn were then and there arrested and put in jail. When the officers returned the next day, the place was still open, and Bridwell there. The other defendants were not there. Blackburn's testimony on the trial would support a conclusion that he was in the habit of frequenting in the evenings the pool room of plaintiff in error, located about a block away from the place in question. The testimony, taken together, tended to sustain an inference that there was more or less intimacy between the defendants, and that there was a directing hand among them. In view of the evidence, we think the jury was justified in inferring that the statement of plaintiff in error that the officers had...