Ferris v. United States, 5827.
| Decision Date | 20 June 1930 |
| Docket Number | No. 5827.,5827. |
| Citation | 40 F.2d 837 |
| Parties | FERRIS et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James B. O'Connor and Harold C. Faulkner, both of San Francisco, Cal., for appellants.
Geo. J. Hatfield, U. S. Atty., of San Francisco, Cal., and Albert E. Sheets, Asst. U. S. Atty., of Sacramento, Cal.
Before DIETRICH and WILBUR, Circuit Judges, and NORCROSS, District Judge.
Appellants were jointly indicted with James Sanchez and Frank Wilson for the unlawful transportation of whisky and gin, and for a conspiracy to so transport. Defendants Sanchez and Wilson pleaded guilty. Appellants pleaded not guilty, and upon trial were convicted. Since taking an appeal, appellant Finney died.
The specifications of error relied upon present questions of the sufficiency of the evidence to support the verdict, rulings upon the admission of certain testimony, and the correctness of an instruction.
About 8 o'clock on the morning of March 6, 1929, the sheriff of Sonoma county, state of California, and one of his deputies stopped a green-painted autotruck driven by the defendants Sanchez and Wilson upon a highway in Sonoma county, near Monte Rio, at a point about six or eight miles in an air line from the Pacific Coast. The truck was found to contain 151 cases of gin and whisky and some sacks containing whisky over which was a covering of canvas. Sanchez and Wilson were placed under arrest, and were handcuffed together. Within a space of time, estimated by the sheriff to be two or three minutes following the arrest of Sanchez and Wilson, a blue sedan automobile was observed approaching and going in the same direction which the truck and officers' car had been proceeding. The sedan was stopped by the officers when it reached the truck. In the sedan were the appellants. They also were placed under arrest; Ferris and Marino being handcuffed together. At the time of their arrest, appellant Ferris gave his name as Williams, and Marino that of Mays. Ferris, who was driving the sedan, was carrying a .38 Colt revolver, loaded. Upon the floor of the car in front of where Marino had been sitting, beside Ferris, there was found a Thompson machine gun with twenty loaded shells in the clip. Upon discovering the machine gun, and in reply to a question of the sheriff as to the purpose of the gun, the appellant Ferris said: "Well, we haven't got that for you, Sheriff; we have got that for hijackers." Later, according to the deputy sheriff, Marino stated concerning this gun that they had been hunting, and that he "had taken the machine gun to hunt quail," and the witness stated that "he said it seriously, no smiles." The sheriff testified that Marino said they had been camping, and, in reference to the gun, said: "Well, we used it for target practice," and that he thought "he said something about shooting quail." In the back seat of the sedan was found the deceased, appellant Finney, apparently asleep. Between the seats of the sedan, in addition to a little sand, some bedding, and provisions, was found a coil of three-inch rope, about ninety feet in length, and weighing approximately 150 pounds. Concerning this rope, the deputy sheriff testified: "There is green on this rope, on one end of it, exactly the same as the paint on the truck." With the exception of the defendant Wilson, who was the driver of the truck, and who was wearing khaki pants, all the defendants were wearing the same kind of pants, "a sort of black jeans." There was found in the truck an extra pair of black jeans, which at the time were wet and sandy.
To the question: "Within a radius of forty miles there, how many places could a boat land on the coast," upon objection overruled, the sheriff replied:
H. O. Neilsen, a witness for the government, over appellants' objection, testified that he was a boatswain in the coast guard service and acquainted with the Sonoma County coast line; that within a radius of forty miles from where the truck was stopped there were about ten places marked on the chart, and perhaps ten more, where small boats could land; that a rope similar to that taken from the sedan was used by seafaring men for mooring lines, or a towline; that in landing a boat on the coast he would use a dory — a flat bottom boat — varying in size from fourteen to twenty-five feet in length.
Over appellants' objection, the arresting officers were permitted to testify relative to the conduct of the defendants Wilson and Sanchez following their arrest and preceding the arrival and arrest of appellants. This testimony was to the effect that these two defendants acted very nervous; that they kept edging back toward the rear of the truck, behind which and at the side of the road was the officers' car; that they kept watching down the road; that they edged around back of the truck, and were ordered back; that they again got back clear to the right-hand corner of the truck, when they were again ordered back to the side of the truck near its left rear corner, whereupon the sheriff and his deputy, standing behind them, upon looking down the road, saw appellants' car approaching.
The sheriff testified that he took the defendants from the place of arrest to Santa Rosa in his own car, and that while on that trip the appellant Ferris repeated the statement that they did not have the gun for officers, but for hijackers, and "wanted to know if there was not some way of fixing it up." The sheriff also testified Ferris said, "I thought the officers in this county were all right to come through here." The sheriff further testified:
At no time does it appear that the men on the truck and the men in the sedan recognized each other, and appellants denied acquaintance with the men on the truck.
Before taking up the question of the sufficiency of the evidence, the rulings as to the admission of certain evidence will be disposed of.
It is urged that it was error to admit testimony concerning the conduct of the defendants Sanchez and Wilson following their arrest, which conduct was not in the presence of appellants. It is the contention of the government that the evidence complained of justified the conclusion that the men on the truck who "kept watching down the road" were expecting the arrival of another car, and, taken in connection with the repeated "edging back" to the rear end of the truck where the officers' car would be between them and an approaching convoy, they would be safe from possible gun fire of rescuers. Counsel for appellants contend that the conspiracy was terminated so far as Sanchez and Wilson were...
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