Feigenbutz v. United States, 9560.

• Decision Date: 12 June 1933
• Docket Number: No. 9560.,9560.
• Citation: 65 F.2d 122
• Parties: FEIGENBUTZ et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

65 F.2d 122 (1933)

FEIGENBUTZ et al. v. UNITED STATES.

No. 9560.

Circuit Court of Appeals, Eighth Circuit.

May 6, 1933.

Rehearing Denied June 12, 1933.

Verne Lacy and John Neu, Jr., both of St. Louis, Mo., for appellants.

Louis H. Breuer, U. S. Atty., of Rolla, Mo., and Arthur A. Hapke and Bryan Purteet, Assts. U. S. Attys., both of St. Louis, Mo., for the United States.

Before STONE, VAN VALKENBURGH, and BOOTH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

The four above-named appellants, together with four other defendants, were indicted in the District Court for the Eastern District of Missouri, charged with conspiring with each other, with twenty other named persons, and with divers other persons whose names were to the grand jurors unknown, to commit offenses against the National Prohibition Act (27 USCA § 1 et seq.), to wit, to manufacture and possess intoxicating liquor for beverage purposes, to possess property designed and intended for use in the unlawful manufacture of intoxicating liquor for beverage purposes, and to maintain nuisances by establishing and maintaining places where such intoxicating liquor was manufactured and kept. This conspiracy was alleged to be in effect from about April 1, 1931, to February 17, 1932. The places at which the liquor in question was manufactured and kept were the Boliancz farm in St. Louis county, the Pfeil farm in Jefferson county, the Falzone farm in St. Louis county, the Helling farm in Franklin county, and the Schaper farm in St. Louis county, all in the vicinity of St. Louis, Mo., and within the eastern judicial district of Missouri. Also a building at 2315 South Broadway in St. Louis. At all these places stills, similar in construction and generally of large capacity, were operated between April 1, and November 19, 1931; and connected with them, variously were found large quantities of mash in vats and of distilled liquor. The still at 2315 South Broadway was located in a house with a garage in the rear. It was not far distant from the premises at 2205 South Broadway, where appellant Joseph Feigenbutz conducted a cleaning and dyeing business, and where, during the conspiracy period, the persons named as conspirators and coconspirators held frequent meetings. Here a number of the cars and trucks, alleged to have been used in connection with the business of the conspiracy, were frequently seen to be parked, as also at the garage at 2315 South Broadway. The case is made by the introduction and piecing together of almost innumerable details of circumstantial evidence. Many of the circumstances, as the trial court says, were proved by direct evidence. But two of the appellants, Joseph Feigenbutz and Addis McCarthy, testified in defense, their testimony consisting merely of a denial of their connection with the conspiracy, and of the evidence of the government tending to connect them with it. It is sufficient to say in this regard that the entire evidence, too extended to incorporate by analysis in this opinion, was abundantly sufficient to support the verdict and judgment, nor was its sufficiency challenged by appropriate motion at the close of the testimony. We are confined, therefore, to the specifications of error, alleged to have occurred in the course of the trial, and alone relied upon for reversal.

Specification No. 2 assigns error for the refusal of the following requested instruction: "The court instructs the jury that participation in an offense which is charged as the object of the conspiracy does not necessarily prove the defendant guilty of conspiracy. The evidence must convince the jury that the defendant or defendants did something other than participate in the offense which is the object of the conspiracy charge. There must, in addition thereto, be proof of the unlawful agreement and participation therein, with knowledge of the agreement."

Of course, it is well known that the court is not compelled to charge the jury in the language of a requested instruction. It is enough if, in the charge as a whole, the subject-matter is sufficiently covered and made clear to the understanding. Frisina v. United States (C. C. A. 8) 49 F.(2d) 733, 737. The court charged that the jury must find that a conspiracy existed, and that no person could be bound by the words or acts of himself or others unless he was engaged in the conspiracy and a party to it. We think the language of the charge sufficiently covered the subject-matter of this request.

Specification No. 3 is addressed to the refusal of the court to give the following requested instruction: "The court instructs the jury that proof of the overt acts alone would not warrant the jury in convicting the defendants for conspiracy."

We think no substantial error can be predicated upon the refusal of this request in the absolute form in which it is worded.

In Dahly v. United States, 50 F.(2d) 37, 42, this court, speaking through Judge Booth, said: "Proof of the overt acts may or may not be sufficient to prove the conspiracy. This will depend upon the character of the overt acts; not whether they are criminal per se or not, but whether they are of such character separately or collectively that they are clearly referable to a preagreement or conspiracy of the actors. If the jury is satisfied, beyond a reasonable doubt, from the evidence that such is the character of the overt acts proven, the jury may find the pre-existence of the conspiracy. Otherwise, evidence independent of the overt acts is necessary to prove the conspiracy."

Specification No. 4 charges error in permitting R. H. Gaston, special agent of the bureau of prohibition, to identify the defendants as persons appearing in moving pictures exhibited to the jury, showing persons and automobiles congregated at No. 2205 South Broadway, alleged to be a rendezvous of the conspirators in St....