Burkhardt v. United States
| Decision Date | 10 June 1926 |
| Docket Number | No. 4540.,4540. |
| Parties | BURKHARDT v. UNITED STATES. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Augustus L. Gebhard and Charles Edwin Scott, both of Bryan, Ohio (Fraser, Hiett & Wall, of Toledo, Ohio, on the brief), for plaintiff in error.
D. L. Sears, Asst. U. S. Atty., of Toledo, Ohio (A. E. Bernsteen, U. S. Atty., of Cleveland, Ohio, and Eugene T. Lippincott, of Lima, Ohio, on the brief), for the United States.
Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.
Burkhardt, with others, was indicted, charged with entering into a conspiracy to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.). Thirty-three overt acts were alleged in the indictment. Before trial nine of the defendants pleaded guilty and two were dismissed. During the trial four more pleaded guilty and two were discharged. Burkhardt was convicted, fined $1,000, and sentenced to confinement in the penitentiary for two years.
The facts upon which the government relied are found in the evidence of Ray Worden and Mary Moss, who were the chief conspirators and were extensively engaged from April, 1924, to the latter part of January, 1925, in transporting liquor by automobile from Monroe and other points in Michigan, through Williams county, Ohio, to Ft. Wayne, Ind., where it was sold to roadhouses and clubs. Bryan was the county seat of Williams county. Burkhardt was the sheriff of the county, having a deputy, Rollins, who protected Worden in transporting the liquor. Worden made two or three round trips through the county every week from April until January. He frequently gave to Rollins a case of beer or bottle of whisky. Another deputy sheriff, Calvin, purchased beer or whisky from him on several occasions. He also made deliveries in large quantities to another customer in Bryan. Rollins was arrested in November for violating the prohibition law. Burkhardt heard of it, but it does not appear that he knew or was informed that Worden was connected with it. There were several transporters of liquor operating through the county. Some of them were apprehended. Worden, the largest and most frequent offender, was never arrested.
It was Burkhardt's duty under the state law to prevent the unlawful transportation of liquor into and through the county. This he failed to do so far as Worden was concerned. The government contends that the circumstances of his inaction evince participation in the conspiracy with full knowledge of its objects. The points in the evidence relied on to support this view are: Failure to arrest Worden at a gasoline station on one occasion, when he had liquor in his automobile, though it was not shown that Burkhardt knew that he had the liquor, or then knew Worden; the taking of Worden to the county jail at a later time, after being introduced to him, and giving him some Michigan license plates; advising a friend, William Ward, who was charged with violating the prohibition law, that if he (Ward) had to go to court not to talk, or to say "`No' to all questions," and employ a lawyer; and the retention of Rollins as a deputy after learning that he had been charged with violating the liquor laws.
It is fundamental that a conspiracy need not be established by direct evidence of an unlawful agreement. Its existence may be shown by proof...
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