Emmanuel v. United States

• Decision Date: 28 March 1928
• Docket Number: No. 5111.,5111.
• Citation: 24 F.2d 905
• Parties: EMMANUEL v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

24 F.2d 905 (1928)

EMMANUEL v. UNITED STATES.

No. 5111.

Circuit Court of Appeals, Fifth Circuit.

March 28, 1928.

Howard P. Macfarlane, of Tampa, Fla. (Macfarlane, Pettingill, Macfarlane & Fowler, of Tampa, Fla., on the brief), for plaintiff in error.

Wm. M. Gober, U. S. Atty., of Tampa, Fla., and Francis L. Poor, Asst. U. S. Atty., of Jacksonville, Fla.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

The indictment against plaintiff in error, George M. Emmanuel, and others contained four counts, three of which charged some of the accused with, at a stated time and place, unlawfully, etc., bringing into and landing in the United States from a named foreign country by means of a certain vessel, to wit, the schooner Ariel, a named alien, who had not been duly admitted to the United States and was not then lawfully entitled to enter and reside within the United States under the terms and provisions of the Act of Congress of February 5, 1917, as amended (Comp. St. § 4289¼a et seq.), and charged Emmanuel and Harrison Smith with unlawfully, etc., aiding, abetting, and assisting in bringing into and landing said alien in the United States from a named foreign country, and the fourth count charged the accused with conspiracy to commit the offenses charged in the other counts. At the conclusion of the evidence the district attorney announced that the government abandoned the fourth count, the one charging conspiracy. Emmanuel was convicted under the first and second counts, the charges of which, respectively, were as to the bringing into and landing in the United States of Jacob Can and Alexander Trancygrea. Emmanuel complains of rulings on evidence, of the court's refusal to direct a verdict in his favor, and of the court's refusal to give the following charges requested in his behalf:

"The court further charges you that an accomplice is a person who knowingly, voluntarily, and with common intent with others, who are subsequently charged with the commission of a crime, unite with such others in the commission of such crime. If you believe from the evidence in this case that the witnesses Jacob Can, Fannie Tunick, and Alexander Trancygrea knowingly, voluntarily, and with common intent joined with any defendants in this case who unlawfully obtained admission to the United States, then the said witnesses would be accomplices in the crime charged in the first and second counts of this indictment. * * *

"The court further instructs you that under the laws of the United States a conviction can be had upon the uncorroborated testimony of an accomplice or accomplices; but, before you are justified in arriving at a verdict upon the uncorroborated testimony of an accomplice or accomplices, their evidence must be clear and convincing, and have the ring of truth, and together with all evidence in the case convince you of the guilt of the defendants beyond and to the exclusion of every reasonable doubt. You are directed to carefully weigh the testimony of any persons testifying in this case whom you shall believe from all the evidence in this case are accomplices, and you should not place too firm a reliance upon such testimony, unless the same is corroborated by the testimony of witnesses other than accomplices, or by other facts and circumstances that verify their testimony in material particulars."

After one Verkman, an alien who was not entitled to admission into the United States, had as a witness for the...