Block v. United States

• Decision Date: 28 June 1920
• Docket Number: 5394.
• Citation: 267 F. 524
• Parties: BLOCK v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

267 F. 524

BLOCK v. UNITED STATES.

No. 5394.

United States Court of Appeals, Eighth Circuit.

June 28, 1920

Rehearing Denied September 13, 1920.

Benjamin Phillip, of St. Joseph, Mo. (R. E. Culver, of St. Joseph Mo., on the brief), for plaintiff in error.

Thomas S. Allen, U.S. Atty., of Lincoln, Neb. (Frank A. Peterson Asst. U.S. Atty., of Omaha, Neb., on the brief), for the United States.

Before HOOK and CARLAND, Circuit Judges, and TRIEBER, District Judge.

TRIEBER District Judge.

The plaintiff in error, hereinafter referred to as the defendant was jointly indicted with Henry Gaspari and Sherman Chinberg, charged with violation of section 37 of the Penal Code (Comp. St. Sec. 10201) by conspiring with his codefendants to violate the Reed Amendment (Act of March 3, 1917, c. 162, par. 5, 39 Stat. 1069 (section 8739a, U.S. Comp. St. 1918, Comp. Stat. Ann. Supp. 1919)). Chinberg was not placed on trial and testified as a witness for the government. Gaspari and Block were tried jointly, and both were found guilty by the jury. Block alone prosecutes this writ of error.

The assignments of error which are insisted on are: (1) That the court erred in refusing to direct a verdict of not guilty; (2) the refusal of certain instructions asked in behalf of this defendant; (3) the failure of the court to call the jury's attention to some of the testimony of the defendant, and calling the jury's attention to Chinberg's testimony as to his conversations with Block at the time of the purchases of the whisky.

In their brief and oral argument counsel for defendants also complain of the charge relating to the defendant's proof of good character. As to the latter contention, there was not only no exception taken to that part of the charge of the court, but it is more favorable than the special request asked in behalf of the defendant on that issue. He cannot complain of that.

The assignment that the court did not call the jury's attention to the denials by the defendant relating to his conversation with Chinberg is without merit, as the court, when this exception was taken, told the jury:

'Mr. Strode calls my attention to the fact that I did not say Mr. Block denies Mr. Chinberg's testimony. I hardly think that is necessary, because you remember he did that. I refer to the testimony simply as showing the basis for some legal propositions. I haven't indicated to you my opinion of the guilt of the defendants here, although I might do so if I desired. I have the right to do so, but I intend to leave that to you entirely.'

Although there were no other exceptions to the charge of the court, the personal liberty of the defendant being at stake, we have carefully examined the charge and find no prejudicial error. Counsel point to some parts of the charge which, if separated from the rest of the charge, might have been erroneous. But this may not be done. The entire charge must be taken as a whole. Stout v. United States, 227 F. 799, 142 C.C.A. 323, certiorari denied by the Supreme Court 241 U.S. 664, 36 Sup.Ct. 549, 60 L.Ed. 1227.

In addition to the excerpt from the charge complained of, the court after reviewing the evidence, and charging the jury as to his codefendants, told the jury:

'Now, does this evidence suffice to show, if you believe it, that Block was a party in the conspiracy to cause intoxicating liquor to be transported in interstate commerce? That is, to procure it to be transported in interstate commerce, there must be an intentional participation by a defendant, such as Block, in transactions with a view of the furtherance of the common design and carrying out the purpose of the scheme. Now, did Block have knowledge of the design of the conspiracy and intentionally participate in the scheme? It would not relieve him, if he sold the liquor for the purpose of having it carried in interstate commerce, that he was a licensed dealer in St. Joseph. The act of Congress doesn't say, as I read it to you, and you understand it that one may cause it to be carried in interstate commerce into a dry state, if he is a liquor dealer or saloon keeper some place. There is no exception of this kind.

'It would not relieve Mr. Block, if in pursuance of a common mutual understanding between the parties he furnished the liquor to be transported in interstate commerce, that he got pay for it. The act of Congress makes no exception of that kind.

'The act of Congress says that no one may cause intoxicating liquors to be transported. Now, if the act of Congress had said no one may transport liquor in interstate commerce, the evidence here would not show that Mr. Block transported it; but the act of Congress says no one may cause it to be transported, and when the charge is that there was a conspiracy to cause it to be transported, that means he shall do no effective act that will cause, or which will result in, its being transported.

'Now one man in a conspiracy may arrange to furnish the money to buy, another may agree to go and get and bring back the liquor, another may sell it; but if the common purpose and agreement is that the liquor is to be caused to be transported in interstate commerce, then each one may be said to be engaged in a conspiracy to cause the liquor to be transported in interstate commerce.'

The special instructions asked in behalf of the defendant, aside from that asking for a directed verdict, in favor of the defendant were fully covered by the general charge, and it therefore was not incumbent on the court to give them in the language requested by the defendant.

Was the evidence sufficient to warrant the submission of the question of guilt or innocence to the jury? The rule is too well established to require the citation of authorities that, if there is substantial evidence to warrant a verdict of guilty, it is the duty of the court to submit the case to the jury, although there is evidence which, if believed by the jury, would justify an acquittal. Evidently the jury believed the testimony of the government's witnesses, rather than that of the defendant. This they had a right to do, as they are the sole judges of the credibility of the witnesses, and the weight to be given to their testimony.

There was substantial evidence to justify the jury to find the following facts: The main witness for the government was the defendant Chinberg. As he was one of the conspirators, the court properly charged that his evidence must be taken with some caution, unless corroborated by other witnesses or circumstances, although the jury may render a verdict of guilty on the uncorroborated testimony of a coconspirator, if satisfied that he testified truthfully. The court in its charge on that point followed what was declared to be the law in Caminetti v. United States, 242 U.S. 470, 37 Sup.Ct. 192, 61 L.Ed. 442, L.R.A. 1917F, 502, Ann. Cas. 1917B, 1168.

The testimony of this witness was to the effect that the defendant Gaspari, who resided at Omaha, Neb., proposed to him that he would pay him $100 for every trip he would make to St. Joseph, Mo., to get a load of whisky from the defendant...