Comeriato v. United States, 3282.
| Decision Date | 26 April 1932 |
| Docket Number | No. 3282.,3282. |
| Citation | 58 F.2d 557 |
| Parties | COMERIATO v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fourth Circuit |
J. Raymond Gordon, of Charleston, W. Va. (Edward S. Sheck, of Akron, Ohio, on the brief), for appellants.
James Damron, U. S. Atty., of Huntington, W. Va. (Okey P. Keadle and Philip Angel, Asst. U. S. Attys., both of Huntington, W. Va., on the brief), for the United States.
Before PARKER and SOPER, Circuit Judges, and PAUL, District Judge.
This is an appeal by Sam Comeriato, Tony Comeriato and William E. Roy, who, with a number of others, were convicted in the court below of a violation of section 37 of the Penal Code (18 USCA § 88) in conspiring to transport intoxicating liquors from Akron, Ohio, to Charleston, W. Va., and there store and sell same in violation of the National Prohibition Act (title 2, § 3 27 USCA § 12). The assignments of error raise three points which are stressed upon the appeal: (1) That the evidence was not sufficient to show that the appealing defendants were guilty of the conspiracy charged; (2) that the court should have instructed the jury that the Comeriatos were entitled to acquittal upon a finding that they sold the liquor which was the subject of the conspiracy at their home in Ohio and had no interest in or control over it thereafter; and (3) that the United States Attorney made improper remarks in presenting the case to the jury which were prejudicial to the defendants.
On the first point the evidence showed beyond question that a conspiracy existed for the transportation of liquor on a large scale from Akron to Charleston and for the illicit sale of same at the latter city. Liquor to the value of many hundreds of dollars was transported pursuant to this conspiracy, and there can be no question but that the defendant Roy participated in the transportation of same in connection with one Waugh, who was shown to be the head and front of the conspiracy. The liquor was sold to Waugh and his agents by the Comeriatos, who did business at Akron, and who were paid by telegraphic money orders sent from Charleston. The evidence amply sustains the conclusion that they knew that a conspiracy existed to carry on the unlawful traffic, and that, with such knowledge, they furnished to the conspirators the liquor which was transported and sold. They thereby made themselves parties to the conspiracy and were equally guilty with the other conspirators. Simpson v. United States (C. C. A. 4th) 11 F.(2d) 593. In the case cited we held that one who had knowledge that a conspiracy existed to transport liquor made himself a party to the conspiracy by furnishing an automobile to be used in the transportation. The same...
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