Dickerson v. United States

• Decision Date: 09 April 1927
• Docket Number: No. 7458.,7458.
• Citation: 18 F.2d 887
• Parties: DICKERSON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

18 F.2d 887 (1927)

DICKERSON et al. v. UNITED STATES.

No. 7458.

Circuit Court of Appeals, Eighth Circuit.

April 9, 1927.

C. C. Putnam, of Des Moines, Iowa (Walter Maley, Paul Williams, and Wilson & Shaw, all of Des Moines, Iowa, on the brief), for plaintiffs in error.

Ross R. Mowry, U. S. Atty., of Newton, Iowa (Frank Wilson and Ray C. Fountain, Asst. U. S. Attys., of Des Moines, Iowa, on the brief), for the United States.

Before KENYON, Circuit Judge, and SYMES and MOLYNEAUX, District Judges.

MOLYNEAUX, District Judge.

The four plaintiffs in error, Dickerson, Conroy, Halley, and Eaton, were indicted together with fifteen other individuals and one corporation, charging conspiracy and various violations of the Prohibition Act (Comp. St. § 10138¼ et seq.). There were five counts in the indictment, and plaintiffs in error were convicted on the first and fourth counts.

The first count charged all of the defendants with a conspiracy (a) to transport 70 drums of alcohol from Peoria, Ill., to Des Moines, Iowa; (b) to sell intoxicating liquor in Des Moines at the Red Line Transfer & Storage Company; (c) to have and to hold intoxicating liquor in their possession for beverage purposes in the city of Des Moines; (d) to possess intoxicating liquor for unlawful purposes in the city of Des Moines; (e) to transport intoxicating liquor in the city of Des Moines; (f) to unlawfully possess intoxicating liquor in the county of Polk and state of Iowa. The fourth count charged the plaintiffs in error with the misdemeanor of unlawfully possessing intoxicating liquor in Des Moines.

The plan to purchase from the Kentucky Distilleries & Warehouse Company, of Peoria, Ill., 70 drums of alcohol and transfer it by railroad to Des Moines, Iowa, and there sell it, was conceived and carried out by a group of Des Moines business men in conjunction with some of the officers and employés of the Kentucky Distilleries & Warehouse Company, aided by certain other persons connected with the railroad and the Red Line Storage Company in Des Moines, and certain other persons who joined with the conspirators to help them sell the liquor, after it arrived in Des Moines. The corporation indicted was the Kentucky Distilleries & Warehouse Company, of Peoria, Ill.

Brown, Brauer, Fuhrman, McKiernan, and Kruger were five of the defendants indicted under the conspiracy charge, each being a resident of Peoria, Ill., and were respectively the manager, assistant manager, superintendent, assistant superintendent, and foreman of the aforesaid corporation. Breckenridge, another defendant charged with conspiracy, was the United States government gauger residing in Peoria, Ill. Lipkin and Ballance, two other defendants under the same indictment, were residents of Peoria, Ill. Hunnell, one of the defendants charged with conspiracy, was a wholesale druggist in Des Moines. Schaller, another defendant, was a hotel keeper of Des Moines, and was formerly connected with Hunnell in the wholesale drug business. Chapman, another defendant under the same indictment, was a druggist residing in Des Moines, Iowa, and an acquaintance of Hunnell's. Levey, another defendant, charged with the conspiracy, resided in Des Moines, Iowa, and was an acquaintance of Hunnell.

The balance of the defendants are the four plaintiffs in error and Masters and Olson, who do not appear in this court upon writ of error, and Neal Brady, a druggist, the indictment against whom was quashed in the court below. Each of these last named defendants and plaintiffs in error being residents of Des Moines, Iowa.

The trial of the case began on December first.

On December 7, 1925, the seventh day of the trial, Ballance, Lipkin and McKiernan, all of Peoria, Ill., and Hunnell, Schaller, and Levey withdrew their pleas of not guilty and pleaded guilty to count 1 of the indictment, that being the conspiracy count, and as to them the government nolled counts 2, 3, 4, and 5. The indictment was dismissed as to Fred Chapman, a local druggist of Des Moines, upon his plea in bar that he had testified for the government in obedience to a subpœna.

The trial thereupon continued as to Dickerson, Halley, Conroy, and Eaton, each of whom were found guilty on counts 1 and 4. Dickerson, Halley, and Eaton were sentenced to imprisonment in the federal penitentiary, each for a term of 16 months on count 1, and each were fined $100 under count 4. Conroy was sentenced to Polk county jail for a period of six months under count 1 and fined $100 under count 4.

The defense asserted by each of the four plaintiffs in error to count 1 was that they were not a party to the conspiracy in any respect; that each of them merely purchased liquor in Des Moines from the conspirators, after the liquor had been transported and had been held in Des Moines for some time, and without knowledge on their part of the conspiracy. Their defense to the fourth count is that there is no evidence showing possession of liquor by them.

The indictment charged a continuous conspiracy from the 25th day of February, 1923, to on or about the 25th day of March, 1923. A careful examination of the evidence discloses the facts to be as follows:

Dorsey Hunnell, a wholesale druggist at Des Moines, Iowa, met an acquaintance, defendant Levey, in Des Moines in January, 1923. This was the beginning of the conspiracy. Levey told Hunnell that he had a connection where he could get a carload of alcohol that was to be labeled denatured alcohol. There would be a few drums of denatured alcohol in the car, and the balance of it would be pure alcohol. Levey said they would have to pay $6 a gallon for the pure alcohol. On the same day Hunnell saw Schaller, the proprietor of the Martin Hotel in Des Moines, Iowa, and Schaller said he thought he had a man that could handle the deal. In the early part of February, thereafter, Schaller, Levey, and Hunnell, of Des Moines, and Lipkin, of Peoria, Ill., met at the Martin Hotel and consulted over the matter. Thereafter on the 20th day of February, Hunnell and Schaller met again at the Martin Hotel in Des Moines and consulted over the matter. No one else was present at this meeting.

Again the very last of February, Schaller, Hunnell, and Levey met at the Rock Island depot in Des Moines, and left for Peoria, arriving there on the 27th of February. There they met Mr. Lipkin, of Peoria, and went down to see Ballance, who was a resident of Peoria, and then met with McKiernan, who was employed at the Kentucky Distilleries & Warehouse Company in Peoria. At that time they worked out the name of a fictitious concern, the Acme Oil & Supply Company, and arranged to have 80 drums of alcohol shipped to the fictitious company at Des Moines. The first five numbers and the last five numbers of the drums numbered serially were to be denatured alcohol, and the intervening numbers would be pure alcohol. The alcohol was to be shipped with a bill of lading attached, and stored in the Red Line Transfer Company at Des Moines. At this conference Ballance explained the plans for getting the alcohol out of the distillery through men that were in the distillery.

After their return to Des Moines, the alcohol was shipped and Mr. Schaller took up the sight draft, so as to get possession of the bill of lading. Mr. Schaller then turned the bill of lading over to Mr. Berg, of the Red Line Transfer Company. Hunnell had a good many conversations with Berg about the matter. The bill of lading was delivered to Berg about the 7th of March, 1923. Schaller and Hunnell delivered to Berg this bill of lading, and Berg paid the freight at the time the car was received from the Rock Island Railroad Company; Schaller giving Berg a check for the freight.

Berg then unloaded the alcohol at the warehouse, and then informed Hunnell and Schaller that he had it unloaded in the warehouse basement, and they both went down and looked it over, and said they would get it out in a very short time. The next morning Hunnell told Berg that he was going to have the alcohol sent back, and asked that Berg order a car for that purpose.

The next morning Hunnell called Berg and said to him not to mind, but to cancel the order for the car; that they were going to take it out right away. Hunnell then told Berg that he was done with this matter, and was washing his hands of it, and would have nothing more to do with it. Hunnell and Schaller gave to Berg the serial numbers of the 10 denatured drums. These drums were in the possession of Berg at the time of the trial.

Around the 3d, 4th, or 5th of March, Schaller told Hunnell that he had taken out 2 drums, and that a man by the name of Alexander was taking the stuff out as fast as he could. Schaller kept telling Hunnell that this man Alexander, who was not a defendant, and whom no one seemed to know other than Schaller, was unloading the stuff and taking it out, but Hunnell became suspicious and called upon Berg, when Schaller told him that he already had half of it out, and Mr. Berg told Hunnell that only 2 drums had so far been taken out, and that they were taken out the evening or the night of the first day the car was set at the warehouse.

Around the 4th of March one of the plaintiffs in error, Eaton, asked Berg if he had a carload of alcohol in the warehouse. Berg told him that he did. Eaton then wanted to know if he could get a couple of drums. Berg told him he would have to call upon Schaller and see. He called up Schaller, and told him that Eaton would like to have 2 drums, and Schaller said all right; let him have them for $1,000. Berg did this, and Eaton paid Berg for the alcohol by check.

Hunnell lost faith in Schaller's ability to move any of the alcohol, and went out to see if he could unload it himself. He first went to the defendant Chapman's drug store. Chapman was not there, and Hunnell then went to see another druggist, and one of the defendants in the court below, Neal Brady. Brady refused to buy, but said he had a friend that...