Goldberg v. United States

Decision Date22 January 1924
Docket Number4172.
Citation297 F. 98
CourtU.S. Court of Appeals — Fifth Circuit

Rehearing Denied February 20, 1924.

F. P McIntire, Shelby Myrick, and T. F. Walsh, all of Savannah Ga. (Morris H. Bernstein, of Savannah, Ga., on the brief) for plaintiff in error.

F. G. Boatright, U.S. Atty., of Cordele, Ga., and Charles L. Redding, Asst. U.S. Atty., of Savannah, Ga. (Charles E. Donnelly, Asst. U.S. Atty., of Savannah, Ga., on the brief), for the United States.

Before WALKER and BRYAN, Circuit Judges, and CALL, District Judge.

BRYAN Circuit Judge.

This is an indictment, under section 37 of the Criminal Code (Comp. St. Sec. 10201), in three counts for conspiracy, on August 26, 1922, to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, Sec. 10138 1/4 et seq.). Conspiracy is charged against Isaac Goldberg, Henry Mears, Harry Litman, and Sam Litman; but it is alleged that Harry Litman and Sam Litman were not indicted, because they had been previously indicted and pleaded guilty to another indictment setting out the same facts. The conspiracy charged in the second count of the indictment is:

'To commit an offense against the United States, that is to say, to violate an act of Congress commonly known as the National Prohibition Act by then and there transporting intoxicating liquors without making at the time a permanent record of such liquors showing in detail the amount and kind of liquors transported, together with the names and addresses of the consignor and consignee and the time and place of such transportation.'

A nolle prosequi was entered as to Mears, and the prosecution proceeded against Isaac Goldberg alone, who hereinafter will be referred to as the defendant. This indictment was consolidated with another one which charged the defendant, in separate counts, with the unlawful sale and possession of intoxicating liquors.

There was evidence to sustain one of the overt acts alleged to the effect that Harry Litman and Sam Litman delivered 500 quarts of intoxicating liquor, packed in barrels, to the Ocean Steamship Company for transportation to New York City. A government witness was permitted to testify that he found 10 barrels of whisky at the Ocean Steamship Company's wharf on Henry Mears' truck, and that he did not have a search warrant, but opened the barrels in which the liquor was packed and seized it. The indictment against Harry Litman and Sam Litman, upon which was indorsed their pleas of guilty, was received in evidence, and they testified that they had packed and sent the liquor to the steamship company's wharf for shipment to New York. These two witnesses gave further testimony which, if true, showed that they were guilty of the offense charged against them by the indictment offered in evidence, which charges the same offense as the indictment in this case. Harry Litman also testified that the attempt to ship the liquor was in pursuance of an agreement he had in May, 1922, with the defendant. The foregoing evidence was admitted over the objection and exception of the defendant.

At the conclusion of the government's case in chief, a motion was submitted to instruct the jury to find for the defendant; but it was denied by the court. The defendant testified in his own behalf and denied any knowledge of or connection with either the conspiracy charged or the overt act testified to by the two Litmans, and did not renew his motion for a directed verdict at the close of all the evidence.

The court charged of its own motion that if the defendant were guilty, Harry Litman and Sam Litman were accomplices, but that the jury was not required to disregard their testimony even though it were not corroborated. The court further charged, at defendant's request, that although the testimony of an accomplice is admissible, it should be scrutinized with care, and that the jury should inquire into the probable motive which prompted it. The court also charged the jury as follows:

'There can be a legal transportation of liquor under the Volstead Act. You can get a permit and transport it legally, but if the defendant relies on legal transportation of liquor, then he must prove that he complied with the law in the respects that would make it legal, and that, of course, is not the contention here.'

The defendant was convicted on all three counts of the indictment, and was sentenced to pay a fine of $5,000 and to be imprisoned for a term of 20 months.

The defendant assigns as error: (1) The overruling of his demurrer to the indictment; (2) the consolidation of indictments; (3) the overruling of his objections to the evidence above set out as to opening the barrels and seizing the liquor contained therein; as to the indictment against Harry Litman and Sam Litman, which contained their pleas of guilty; and as to Harry Litman's testimony that he attempted to ship liquor from Savannah to New York in pursuance of an agreement with the defendant; (4) the overruling of the motion to direct a verdict; and (5) the above-mentioned charges of the court given of its own motion.

1. The second count of the indictment charges a conspiracy to...

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