Davis v. United States

• Decision Date: 29 October 1936
• Docket Number: No. 8113.,8113.
• Citation: 86 F.2d 45
• Parties: DAVIS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

86 F.2d 45 (1936)

DAVIS v. UNITED STATES.^*

No. 8113.

Circuit Court of Appeals, Fifth Circuit.

October 29, 1936.

Clifford E. Hay, of Thomasville, Ga., and Lee W. Branch, of Quitman, Ga., for appellant.

T. Hoyt Davis, H. G. Rawls, Asst. U. S. Atty., and A. Edward Smith, Asst. U. S. Atty., all of Macon, Ga.

Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.

SIBLEY, Circuit Judge.

The indictment contains fifteen counts, of which the first was stricken on demurrer and the others held good. The verdict was guilty on counts 12, 13, 14, and 15, and not guilty on counts 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11. The judge sentenced generally to imprisonment in a penitentiary for two years and to pay a fine of $100. The twelfth count charged a conspiracy, and by itself would support the sentence. It will suffice to examine the trial as touching this count. While it is assigned as error that the evidence did not warrant the verdict, no motion to the court for an instructed verdict appears so as to raise that question. We have, however, looked into the evidence far enough to see that there was substantial evidence of guilt and mainly a question of the veracity of witnesses. A demurrer questioned count 12 as not sufficiently specific, and a motion to arrest judgment asserted that it was so constructed as not to charge any overt acts and that the verdict was so repugnant to itself as to be void.

The twelfth count charges a conspiracy on a named date in the Valdosta Division of the Middle District of Georgia between the defendant and other named persons "unlawfully within the jurisdiction aforesaid to transport, sell and transfer certain distilled spirits, to-wit whiskey, the immediate container of which should not and did not then and there have affixed thereto a stamp denoting the quantity of distilled spirits contained therein and evidencing payment of all internal revenue taxes imposed on such spirits; and unlawfully within the jurisdiction aforesaid to remove, deposit and conceal certain goods and commodities, towit a large quantity of whiskey, for and in respect of which a tax is imposed, with intent to defraud the United States of such tax; and unlawfully within the jurisdiction aforesaid to carry on the business of a retail liquor dealer without having first paid the special tax as required by law; contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States. Overt Act One. In furtherance of the said conspiracy and to effect the object thereof the said defendant on or about the 11th day of March, 1934, in Thomas County, within the Valdosta Division of the Middle District of Georgia, did receive from the said Henry W. Grimsley $60.00 in money." Five other overt acts are similarly charged. The special demurrers complain that sufficient details of the conspiracy are not given, nor any facts to identify the transportation, possession, or sale of the liquor or the container of the liquor, or when, where, or by whom the whisky was removed or concealed, or in what way defendant was carrying on a retail liquor business, seeing that Georgia is a dry state and no such business there could be taxed by the United States; the allegations of the overt acts are averred to be insufficient as not showing how they were in furtherance of the conspiracy. We think the conspiracy, which is the gist of the offense, is sufficiently stated. The time, place, and persons concerned are...