Blaine v. United States
| Citation | 29 F.2d 651 |
| Decision Date | 12 January 1929 |
| Docket Number | 5412.,No. 5378,5404,5379,5378 |
| Parties | BLAINE et al. v. UNITED STATES (two cases). ROBINSON v. SAME. IRVINE v. SAME. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Robert P. Coon, of San Antonio, Tex., for appellants Blaine and others.
W. B. Harrell, of Dallas, Tex., for appellant Robinson.
Jed. C. Adams and W. B. Harrell, both of Dallas, Tex., for appellant Irvine.
Norman A. Dodge, U. S. Atty., of Fort Worth, Tex., and Sarah Cory Menezes, Asst. U. S. Atty., of Dallas, Tex.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
Blaine and Culwell were convicted as charged in two indictments for conspiracy to violate the National Prohibition Act. 27 USCA. Robinson was named as co-conspirator in one indictment, and Irvine in the other, and they also were convicted as charged. A separate trial was had upon each indictment, but it will simplify matters to dispose of these several appeals in a single opinion.
In the indictment against Robinson, Blaine, and Culwell, Robinson was described as a physician, and the holder of a permit, granted by the prohibition administrator, to issue prescriptions for intoxicating liquor to be used for medicinal purposes; Blaine was described as the proprietor of a pharmacy, and the holder of a permit to sell and dispense intoxicating liquor pursuant to prescriptions lawfully issued by physicians. Culwell was described as a licensed pharmacist, designated in Blaine's permit as the pharmacist who had authority to make sales of medicinal liquor pursuant to valid physician's certificates. It was then alleged that these three defendants did unlawfully conspire and agree to violate the National Prohibition Act, in that it was agreed between them that Robinson would, by making unlawful use of his permit, issue prescriptions ostensibly for the use of persons whose names were written on official blanks, but in truth and in fact for the use of persons unknown to him, whose names would be furnished by Blaine and Culwell; that Blaine would buy the prescriptions from Robinson in advance of any sale and have them in his pharmacy; that Blaine and Culwell would unlawfully sell intoxicating liquor for beverage purposes to divers persons not named in the physician's permits, and without requiring from the actual purchasers any physician's prescription, would place on the bottles of intoxicating liquor so sold labels bearing the names of the persons designated therein; and that Culwell would keep the illegal prescriptions issued by Robinson, so as to make it appear from his records that the unlawful sales of liquor for beverage purposes were lawful sales of liquor for medicinal purposes.
The overt acts alleged consisted of the issuing and canceling of the physician's prescriptions. In the other indictment Irvine was described as the physician, and it was alleged that he conspired to do the things that it was alleged Robinson conspired to do in the indictment above described. The two indictments are in the same form, and differ only in the names of the physician, and in the dates laid for the formation of the conspiracy and commission of overt acts. The indictments were attacked as being fatally defective by all parties defendant, in that: (1) The crime of conspiracy is not shown where concerted action or plurality of agents is necessary to constitute the substantive offense alleged to be the object of the conspiracy; (2) the conspiracy alleged is so general and indefinite as that it fails to accord notice to defendants of the nature and cause of accusation against them; (3) the permits alleged to be held by the physician and the pharmacist were invalid, because a prohibition administrator is without authority of law to issue such permits; (4) it is not alleged that the intoxicating liquors defendants agreed to sell were to be fit for beverage purposes, or were to contain more than one-half of 1 per centum of alcohol by volume; (5) the overt acts alleged do not consist of any of the things which it is alleged the parties to the conspiracy agreed to do.
Robinson separately assigns error on the refusal of the court to sustain his plea of immunity, which was to the effect that before trial, and in response to an oral request, he appeared and made a statement in the nature of a confession at a hearing held by the prohibition administrator for the purpose of considering the revocation of Blaine's permit. However, it affirmatively appeared that he did not appear or give...
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United States v. B. Goedde & Co.
...defendants are charged to have conspired to commit. Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278; Blaine v. United States, 5 Cir., 29 F.2d 651, certiorari denied 279 U.S. 845, 49 S.Ct. 342, 73 L.Ed. 990. The indictment contains some twenty-two printed pages. As is r......