Briggs v. United States
| Decision Date | 24 October 1949 |
| Docket Number | 3889.,No. 3888,3888 |
| Citation | 176 F.2d 317 |
| Parties | BRIGGS v. UNITED STATES. PAYNE v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
R. M. Mountcastle and Kelly Brown, Muskogee, Okl., for appellant Briggs.
A. Camp Bonds and John W. Porter, Jr., Muskogee, Okl. (John W. Porter, Sr. and W. R. Banker, Muskogee, Okl., on the brief), for appellant Payne.
Cleon A. Summers, U. S. Atty., Muskogee, Okl., and Paul Gotcher, Asst. U. S. Atty., McAlester, Okl., for the United States.
Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.
Writ of Certiorari Denied October 24, 1949. See 70 S.Ct. 102.
Eddie J. Briggs, Sheriff of Muskogee County, Oklahoma, and Fred Payne, a Muskogee County liquor dealer, were convicted by a jury verdict, and sentenced by the District Court for the Eastern District of Oklahoma, on an indictment charging that they and other named persons (not convicted), conspired to violate the internal revenue laws of the United States, by carrying on the business of a wholesale liquor dealer without paying the special taxes required by 26 U.S.C.A. § 3253; purchasing and receiving distilled spirits in quantities greater than twenty gallons from persons other than authorized dealers of distilled spirits in violation of 26 U.S.C.A. § 2860; wilfully failing and refusing to keep records of such business in violation of 26 U.S.C.A. § 2857; and failing and refusing to keep conspicuously on the outside of the place of such business a sign stating that they were "wholesale liquor dealers" in violation of 26 U.S. C.A. § 2831. Twenty overt acts were pleaded in furtherance of the conspiracy.
Payne separately appeals from a conviction and sentence on the substantive offenses charged as objects of the conspiracy. On appeal, both attack the legal sufficiency of the indictment, but it is patterned upon the indictment approved by this Court in Young v. United States, 168 F.2d 242.
To establish the conspiracy, the government introduced evidence that in December 1946, after Briggs had been elected sheriff, and before he took office, he went to the home of Dewey Stokes, a retail liquor dealer, and asked him if he wanted to wholesale liquor in Muskogee County. Upon being told that he wished to remain a retail dealer, Briggs told Stokes that he was going to have a wholesale liquor man, and inquired of the usual pay-off to the sheriff.
Prior to 1946, Fred Payne was a small retail liquor dealer in the City of Muskogee. In December of that year, and before the Sheriff took office the following January, he moved just outside the city limits, and established a large wholesale place about 200 feet from the side of the road. It is undisputed that during the period laid in the conspiracy, Payne purchased about 7624 cases of whisky, with a value of $319,110.00, and that he made frequent sales in wholesale lots. The evidence shows that he freely represented to retail dealers that if they bought their whisky from him at $5.00 per case in excess of the established price, he would pay their fines and replace their whisky if raided and charged. There was evidence from which the jury was entitled to infer that if a retail dealer purchased whisky from Payne, he was not molested by the county, but if he failed to do so, he was immediately raided.
On one occasion, when a retail dealer had been consistently raided, he went to the sheriff and inquired whether he wanted him to quit. When he said that he did, he asked the sheriff if there was anything he could do, and the sheriff told him to "look around". He contacted Greenwood, a former deputy sheriff, who told him that he could operate if he gave $5.00 per case to the sheriff, and that if he did operate, Greenwood would be the bookkeeper so that the sheriff would not be cheated. Another retail dealer testified that Payne told him that if he wanted to sell whisky, he would have to buy it from him at $14.50 a lug wholesale. When he told Payne that he could not make any money at that price, Payne said "You will make as much money as I do; I have to give the man a thousand dollars a month", and that so long as he bought whisky from Payne, he was never raided by the sheriff or his deputies.
Dewey Stokes testified that soon after taking office, Briggs advised him that if he had any whisky on his place, he had better get it out, and that soon thereafter, Payne and a constable seized his whisky and delivered part of it to the county jail. He went to the jail and surrendered, and requested permission to examine and count his whisky which had been seized and delivered to the jail. While acting under the pretense of counting the whisky, he made a chalk mark on the bottles without letting anyone know. Later, he and two soldiers went to Payne's place and bought two bottles of Seagram's 7-Crown whisky, bearing the marks he had placed upon them in the jail.
While Payne was serving a thirty day jail sentence for violating the state prohibition laws under mandate of the Criminal Court of Appeals, he was often seen at his wholesale establishment. On one occasion, Briggs called Stokes, told him that he had Payne "behind the steel", and asked him to come down to the jail for a cup of coffee and see Payne in jail. When Stokes arrived, he was admitted to the jail, the sheriff had gone, and Payne was released and permitted to beat him up.
Another witness testified that in May 1947, Greenwood asked the witness to come to his home. Upon his arrival there, he found the sheriff, who asked him if he had been noticing editorials in the newspaper. When he said that he had, the sheriff replied, "that newspaper is putting the heat on us all * * * we are going to have to get rid of that newspaper man before we can make any money", and wanted to know if he could do it or import someone. Briggs asked the witness if John Louis Stone, the newspaper editor, ever came out to his place, and when informed that he did, asked if he ever drank anything. When the witness replied that he came out once in a while, the sheriff said, .
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