Carlson v. United States

• Decision Date: 28 October 1957
• Docket Number: No. 5649.,5649.
• Parties: Fred Albert CARLSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

249 F.2d 85 (1957)

Fred Albert CARLSON, Appellant, v. UNITED STATES of America, Appellee.

No. 5649.

United States Court of Appeals Tenth Circuit.

October 28, 1957.

Carmon C. Harris, Oklahoma City, Okl., for appellant.

Philip R. Douglas, Asst. U. S. Atty., Oklahoma City, Okl. (Paul W. Cress, U. S. Atty., Oklahoma City, Okl., was with him on the brief), for appellee.

Before BRATTON, Chief Judge, and HUXMAN and BREITENSTEIN, Circuit Judges.

BREITENSTEIN, Circuit Judge.

Appellant Carlson was convicted under two counts of an indictment returned against him and others. The first count charged conspiracy to engage in business as a retail liquor dealer without paying the special tax required by law. On this count Carlson was sentenced to imprisonment for 18 months and fined the sum of $2,500. The fifth count charged that Carlson carried on the business of a wholesale liquor dealer without paying the special tax. For this offense Carlson received a term of 18 months to run concurrently with the term imposed on Count 1. Counts 2 and 3 did not involve Carlson and on Count 4 Carlson was found not guilty by the jury.

The first count charges that during the period October 5, 1955, to March 5, 1956, Carlson, Orville Lindsay Chambless, Mary Lou Chambless, and James Cullen Hodge conspired with each other, and with other unknown persons. The object of the conspiracy is stated thus in the indictment:

"* * * it was the purpose and object of the aforesaid unlawful conspiracy and of said defendants and their co-conspirators, and each and all of them, that they would, throughout the continuance of said conspiracy, carry on the business of a retail liquor dealer in the premises of Orville Lindsay Chambless and Mary Lou Chambless, 4901 Northwest 50th Street, Oklahoma City, in the Western District of Oklahoma, without paying the special taxes therefore as required by the Internal Revenue laws of the United States of America."

The principal ground urged for the reversal of the conviction under Count 1 is the insufficiency of the evidence.

26 U.S.C. § 5121(a) (1) provides for a special tax of $50.00 a year on every retail dealer in liquors. Section 5691 imposes a penalty of fine and imprisonment for any person who carries on the business of a retail dealer in liquors and wilfully fails to pay the special tax. A retail dealer in liquors is defined in section 5122 as follows:

"Except as otherwise provided, every person who sells, or offers for sale, foreign or domestic distilled spirits, wines, or beer in quantities of less than 5 wine gallons to the same person at the same time shall be regarded as a retail dealer in liquors: * * *."

The indictment in its Count 1 does not charge the substantive offense of carrying on the business of a retail liquor dealer without paying the tax, but rather a conspiracy to commit such an offense. The gist of the offense of conspiracy as defined by 18 U.S.C. § 371 is agreement among the conspirators to commit an offense attended by the act of one or more of the conspirators to effect the object of the conspiracy.¹ The controlling question on this count is whether Carlson entered into a conspiracy to carry on the business of a retail liquor dealer at the Chambless premises, 4901 Northwest 50th Street, Oklahoma City, Oklahoma.

The parties have submitted a stipulation summarizing the testimony. Prior to August, 1955, Orville Chambless was in the retail liquor business in Oklahoma City. His customers secured liquor from him by placing orders through his telephone located at 4901 Northwest 50th Street. Carlson who lived at 2948 Lakeside Drive, Oklahoma City, had paid the required tax covering his operations as a retail liquor dealer at that address. Carlson and Mary Lou Chambless entered into an oral agreement whereby calls coming to the Chambless home over the telephone there located "would be transferred to the appellant Carlson for the filling of said orders and the delivery of the whiskey to said customers." In the stipulation it is stated that:

"Pursuant to said agreement, and commencing on or about October 5, 1955, the said Mary Lou Chambless did receive numerous and sundry telephone orders for whiskey over said telephone, which orders were made by persons who knew that telephone number WIndsor 2-5521 was a number that could be used for placing an order for whiskey. That the said Mary Lou Chambless customarily took the orders, consisting of the name and address of the customer, and the quantity and price of the whiskey desired to be purchased, and transferred the same to the appellant at his home, 2948 Lakeside Drive, Oklahoma City, Oklahoma, where the appellant, or his agent, took the orders and customarily filled them by sending the whiskey so ordered to the customer at his address and collecting therefor upon delivery."

In the stipulated summary of the defendant's testimony, it is stated that "Appellant Carlson determined whether any given order would be filled or declined."

The question raised resolves itself into a determination of whether the receipt of these telephone orders for whiskey at the Chambless residence and their subsequent transmission to Carlson constitute the carrying on of the business of a retail liquor dealer at the Chambless residence. We are of the opinion that it does not. The record is devoid of any evidence showing any affirmative act of sale or of an offer to sell at that address. There is no evidence that Mary Lou Chambless under her agreement...