Grayson v. United States

• Decision Date: 15 April 1921
• Docket Number: 3470.
• Citation: 272 F. 553
• Parties: GRAYSON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

272 F. 553

GRAYSON et al. v. UNITED STATES.

No. 3470.

United States Court of Appeals, Sixth Circuit.

April 15, 1921

Samuel B. Smith, of Chattanooga, Tenn. (Henry A. Newman, on the brief), for plaintiffs in error.

W. T Kennerly, U.S. Atty., of Knoxville, Tenn. (W. T. Kennerly, of Knoxville, Tenn., on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

KNAPPEN Circuit Judge.

This writ is to review a conviction of plaintiffs in error (hereinafter called defendants) upon an indictment charging a conspiracy, under section 37 of the Criminal Code (Comp. St Sec. 10201), to violate the Reed Amendment (Act March 3 1917, 39 Stat.c. 162, Sec. 5, p. 1069 (Comp. St. 1918, Comp St. Ann. Supp. 1919, Sec. 8739a)), by transporting intoxicating liquors for beverage purposes from points in Ohio and Kentucky into the state of Georgia, the laws of which state prohibited the manufacture and sale therein of intoxicating liquors for beverage purposes. The errors relied upon sufficiently appear in the course of the opinion.

1. The indictment, which contains a single count, charges that the conspiracy was entered into at Atlanta, Ga. Two overt acts are alleged, both being the interstate transportation by passenger train of intoxicating liquor from points in Ohio and Kentucky into Hamilton county, Tenn. (which was within the jurisdiction of the court below), one of the shipments being of 5 trunks of whisky, the other of 13 cases of whisky. The indictment is assailed as defective, because the shipments constituting the overt acts alleged are not charged to have been made for beverage purposes. This criticism is not well made. While the conspiracy charged, which is the gist of the offense, was the contemplated interstate transportation of liquor for beverage purposes, it is not important that this latter purpose is omitted from the statement of the overt act, which 'need not be in and of itself a criminal act; still less need it constitute the very crime that is the object of the conspiracy. ' United States v. Rabinowich, 238 U.S. 78, 86, 35 Sup.Ct. 682, 59 L.Ed. 1211; Goldman v. United States, 245 U.S. 474, 477, 38 Sup.Ct. 166, 62 L.Ed. 410; Pierce v. United States, 252 U.S. 239, 244, 40 Sup.Ct. 205, 64 L.Ed. 542.

2. There is, we think, no merit in the objection of lack of evidence that the alleged conspiracy was entered into in Georgia. There was abundant evidence that such conspiracy was formed somewhere. As a practical proposition, it is not highly important to defendant whether the conspiracy was formed in Atlanta or somewhere else, as the venue is laid in the Eastern district of Tennessee, and the commission of overt acts there is charged. Indeed, the indictment would have been sufficient, had it stated that the place where the conspiracy was formed was unknown. Brown v. Elliott, 225 U.S. 392, 400, 32 Sup.Ct. 812, 56 L.Ed. 1136.

There was, however, in our opinion, substantial testimony tending to support a conclusion that the conspiracy was actually formed at Atlanta. Express testimony on that subject would scarcely be available, especially as no evidence was presented by defendants. The testimony showed, however, that the defendants were brothers and that they lived in Atlanta, Ga. The testimony also tended to show that Atlanta was the headquarters of their operations in an illicit liquor business. In the absence of evidence to the contrary (there was none), the natural and reasonable inference would be that the conspiracy was entered into there. There was thus ample justification for such conclusion. Shea v. United States (C.C.A. 6), 236 F. 97, 101, 149 C.C.A. 307; Laughter v. United States (C.C.A. 6), 259 F. 94, 98, 170 C.C.A. 162.

3. Defendants challenge the jurisdiction of the District Court in Tennessee, there being neither allegation nor proof that the alleged conspiracy was formed there. The Sixth Amendment to the federal Constitution guarantees to an accused the right to a trial by jury 'of the state and district wherein the crime shall have been committed. ' Section 42 of the Judicial Code (Comp. St. Sec. 1024), however, provides that an offense begun in one district and completed in another may be tried and punished in either district; and it is settled that in view of this section of the Judicial Code, and of section 37 of the Criminal Code, prosecutions for conspiracy may be maintained either in the district in which the conspiracy was formed or in any district in which an act was done to effectuate its object. Hyde v. Shine, 199 U.S. 62, 76, 25 Sup.Ct. 760, 50 L.Ed. 90; Hyde v. United States, 225 U.S. 347, 356, 363, 32 Sup.Ct. 793, 56 L.Ed. 1114; Brown v. Elliott, 225 U.S. 392, 400, 32 Sup.

Ct. 812, 56 L.Ed. 1136; Joplin Co. v. United States, 236 U.S. 531, 535, 35 Sup.Ct. 291, 59 L.Ed. 705; United States v. Rabinowich, supra. The cases of interstate transportation charged as overt acts, as shown by the tendency of the testimony, were these:

(a) On March 13, 1919, the two defendants carried a large quantity of whisky in suit cases on a train running from Cincinnati, Ohio, through Hamilton county, Tenn., on the way to Georgia; one defendant boarding the train at Cincinnati, the other at Lexington, Ky.-- the whisky being carried as hand baggage in the stateroom of the Pullman car occupied by defendants until it was seized by officers at Chattanooga.

(b) On February 17, 1919, defendant H. L. Grayson caused to be transported five trunks of whisky, checked as baggage, into Hamilton county, Tenn., on its way to Georgia; he having control or possession of the checks therefor, issued upon interstate railroad tickets under which he and a companion were riding. These trunks were likewise seized at Chattanooga.

The personal carriage by the two defendants of the whisky in the suit cases as hand baggage clearly constituted an overt act within the district of the trial; for while an offense under the Reed Amendment was not thereby committed in Tennessee although that state was dry (United States v. Gudger, 249 U.S. 373, 39 Sup.Ct. 323, 63 L.Ed. 653), yet, as the overt act necessary to give jurisdiction need not complete the offense charged, the actual bringing of the intoxicating liquors into the district of the trial, in furtherance of the conspiracy charged, gave jurisdiction in that district because an overt act was actually committed therein-- this method of carriage being clearly interstate transportation within the meaning of the Reed Amendment. United States v. Hill, 248 U.S. 420, 39 Sup.Ct. 143, 63 L.Ed. 337; United States v. Simpson, 252 U.S. 465, 40 Sup.Ct. 364, 64 L.Ed. 665. There being substantial evidence of the formation of the conspiracy as charged, and of an overt act committed within the district of the trial, defendants' motion for directed verdict was properly overruled, whether or not the trunk...