Gay v. United States

• Citation: 12 F.2d 433
• Decision Date: 06 April 1926
• Docket Number: 4526.,No. 4525,4525
• Parties: GAY v. UNITED STATES (two cases).
• Court: U.S. Court of Appeals — Fifth Circuit

12 F.2d 433 (1926)

GAY v. UNITED STATES (two cases).

Nos. 4525, 4526.

Circuit Court of Appeals, Fifth Circuit.

April 6, 1926.

Bart. A. Riley, of Miami, Fla., for plaintiffs in error.

Wm. M. Gober, U. S. Atty., of Tampa, Fla., Harry Reinstine, Asst. U. S. Atty., of Jacksonville, Fla., Maynard Ramsey, Asst. U. S. Atty., of Tampa, Fla., and N. J. Morrison, Sp. Asst. Atty. Gen., for the United States.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judges.

Two brothers, Roy Gay and Russell Gay, were indicted and tried separately for jointly assaulting a federal prohibition agent and destroying a pitcher of intoxicating liquor after it had been seized by that officer. The indictments were based on section 65 of the Criminal Code (Comp. St. § 10233). The cases may be disposed of in a single opinion, as they arise out of the same state of facts.

The first count of the indictment against Roy Gay charges that he "did unlawfully and willfully forcibly assault, oppose, prevent, impede, and interfere with an officer of the internal revenue, to wit, one A. J. Ryals." It proceeds to charge that Ryals was then and there engaged in the execution of his duties in the enforcement of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138 ¼ et seq.). There was a verdict of guilty on this count only.

Russell Gay was convicted on three counts of the indictment against him. The first count charges that he "did unlawfully, knowingly, and feloniously forcibly assault, oppose, and interfere with a certain officer of the internal revenue, to wit, A. J. Ryals, said A. J. Ryals being then and there a federal prohibition agent, * * * engaged in the execution of his duties in the enforcement of the National Prohibition Act, * * * and the said Russell Gay aforesaid did then and there in such forcible assault, opposition, and interference use a deadly weapon, to wit, a knife, * * * with intent to commit bodily injury upon the said A. J. Ryals aforesaid, and to deter and to prevent him from the discharge of his duties aforesaid." The second count, except as to the name of the defendant, is in the same language as the first count of the indictment against Roy Gay. The third count charges the destruction of a pitcher of intoxicating liquor after it had been seized by Ryals while acting in his capacity as prohibition agent. Russell Gay's sentence was not as great as could have been imposed under the first count.

In each case the court denied a motion to quash the indictment on the ground that it failed to allege that the defendant knew Ryals was a prohibition agent. Ryals testified that he was a prohibition agent; that he went into a restaurant where he saw Roy Gay serving drinks of intoxicating liquor out of a pitcher; that he bought a drink, tested it, found that it was whisky, seized the pitcher and told Roy Gay that he was a federal officer; that Gay replied that he did not care if he was; that both defendants thereupon assaulted Ryals, took the pitcher away from him, and poured the whisky out; and that on the same occasion Russell Gay attacked him with a butcher knife. In Roy Gay's case the court omitted to instruct the jury that there could be no conviction unless the defendant knew Ryals was a prohibition agent. Exceptions were taken to portions of the court's charge, but it is not contended that those portions contain any incorrect statement of the law, and no request was made to charge upon the subject of that defendant's knowledge of the capacity in which Ryals was acting at the time of the assault.

In Russell Gay's case an exception was taken to a charge to the effect that if that defendant acted in concert with others in aiding and abetting them in destroying the pitcher of liquor, he would be as guilty as if he himself had actually destroyed it.

In each case the court denied a motion in arrest of judgment. In behalf of each defendant it is contended that the indictment against him charges no offense, and that the court erred in its charge to the jury.

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