Collins v. United States

• Decision Date: 31 May 1933
• Docket Number: No. 6580.,6580.
• Citation: 65 F.2d 545
• Parties: COLLINS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

65 F.2d 545 (1933)

COLLINS et al. v. UNITED STATES.

No. 6580.

Circuit Court of Appeals, Fifth Circuit.

May 31, 1933.

Bart A. Riley, of Miami, Fla., for appellants.

W. P. Hughes, U. S. Atty., of Jacksonville, Fla.

Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.

FOSTER, Circuit Judge.

Appellants, William Collins, Lee Brewer, and Fred Walton, were convicted on an indictment which charged, in the first count, a conspiracy between them and a number of others to violate the Customs Laws (19 US CA § 1 et seq.) and the National Prohibition Act (27 USCA § 1 et seq.), by importing and transporting intoxicating liquor for beverage purposes, and, in the fifth and sixth counts, the transportation, in separate railroad cars, of intoxicating liquor from Sherman in Okeechobee county, Fla., to Baldwin, Duval county, Fla. Only appellants were put on trial. Since the filing of the record in this court, Walton has dismissed the appeal as to him.

A number of errors are assigned, but only two are pressed on appeal. As to the first of these, appellants contend: That Brewer and Collins were tried prior to the trial of the case at bar on an indictment charging them with a conspiracy similar to the conspiracy charged in this case but with other defendants; that said trial resulted in a mistrial, and the same witnesses were used by the government and the same facts testified to were used in this case; that this is so inconsistent that the testimony was inadmissible. This contention is entirely without merit. The government was at liberty to use the same witnesses in another case where the testimony was relevant.

The second error urged is to the failure of the trial court to direct a verdict of acquittal. It appears from the bill of exceptions that at the close of the government's case defendants moved for a directed verdict. It was granted as to counts 2, 3, and 4 of the indictment, which charged separate acts of transportation by automobile trucks, but was denied as to the three counts on which the conviction was had. After the denial of this motion, appellants all took the stand in their own behalf, and evidence from a number of witnesses was introduced as to the good character of Collins and Brewer. The motion to direct was not renewed.

It is the general rule that the introduction of evidence by the defendant waives a motion for verdict made at the close of the plaintiff's case. Smith v. U. S. (C. C. A.) 63 F.(2d) 110. However, the bill of exceptions contains all the evidence, and is authenticated by the signature of the judge. It is well settled that, where there is no substantial evidence to support a conviction in a criminal case, it is the duty of the trial court to direct a verdict of acquittal, regardless of whether a motion to that effect is made. If from the record or facts of which the court may take notice it appears that the conviction cannot be sustained, plain error appears on the record, and the judgment will be reversed. Clyatt v. U. S., 197 U. S. 207, 25 S. Ct. 429, 49 L. Ed. 726; Gambino v. U. S., 275 U. S. 310, 48 S. Ct. 137, 72 L. Ed. 293, 52 A. L. R. 1381. Having regard for the just cited authorities, we have examined the facts appearing in the record with the view of ascertaining whether reversible error is shown.

The record shows the following facts: Collins was the sheriff of Okeechobee county, Fla. Brewer was his only active deputy. Thomas was superintendent of a lumber mill at Sherman in Okeechobee county. Davidson was employed as a shipping clerk at the said mill. Thomas testified that in the latter part of August, 1929, Collins came out to the mill and introduced two strangers, whose names he did not remember. They wanted to arrange for buying lumber to be loaded in box cars and bulkheaded and for a supply of about 25 sacks of sawdust and ten gallons of turpentine for each car, the cars to be put on a siding and liquor to be stored in them with the lumber. He did not see how he could make the arrangements without involving the mill, and they did not trade at that time. About the middle of October, 1929, Brewer and Collins came to the mill with two strangers, one of them he did not remember, but the other was Walton. Collins introduced them. Collins and Brewer stepped aside, and Walton talked to him about the shipments of liquor in box cars containing lumber. He was afraid to enter into any such arrangement, but talked with Collins about it, and told him he was afraid to do it. Collins told him it was all right, and that he and his deputy would give protection in their county, and the liquor trucks would be escorted by him or his deputy. After that he made the arrangement with Walton for the shipments of liquor. Davidson testified that he first met Walton about the 1st of October, 1929, and Walton made arrangements with him to superintend the loading of the lumber into cars after having first talked with Thomas. Thomas was present when the arrangements were made. Collins and Brewer told Davidson they...