Hall v. United States, 1876

• Decision Date: 08 February 1940
• Docket Number: No. 1876,No. 1878-1881.,1876,1878-1881.
• Citation: 109 F.2d 976
• Parties: HALL v. UNITED STATES, and four other cases.
• Court: U.S. Court of Appeals — Tenth Circuit

109 F.2d 976 (1940)

HALL v. UNITED STATES, and four other cases.

Nos. 1876, Nos. 1878-1881.

Circuit Court of Appeals, Tenth Circuit.

February 8, 1940.

W. E. Utterback, of Durant, Okl., for appellants.

Cleon A. Summers, U. S. Atty., of Muskogee, Okl. (Frank Watson, Asst. U. S. Atty., of Muskogee, Okl., on the brief), for appellee.

Before PHILLIPS, HUXMAN, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

All defendants were convicted on the first count, which charged a conspiracy to commit an offense against the United States of America under the provisions 26 U.S.C.A. § 404, 1925 Edition, 26 U.S.C.A. § 1287, 1934 Edition, and Title 2 of an Act of Congress of January 11, 1934, known and designated as the Liquor Taxing Act of 1934, 26 U.S.C.A. § 1152a et seq., and sections 250¹ and 251² of Title 18 U.S.C.A.

The overt acts as pleaded are hereafter mentioned.

The defendant Hall during the period between October 1, 1936 and December 20, 1937 was a police officer in the city of Hugo, and James H. Lindley Chief of Police from May 4 until December 20, 1937, having been elected on first Tuesday of April (Vol. 1, Okla.Stat.1931, Section 6421, Title 11, Section 555, Okl.St.Ann.), served in that capacity, said defendants being convicted on count 1, and Hall also on counts 2 and 3, and Oscar Bearden, a constable and also a merchant police, convicted on counts 1, 2 and 3, no appeal being prosecuted by him. Howard Rorie, convicted on counts 1, 8 and 9, prior to October 1, 1936 had been a police officer in said city, and during the time as to the offenses charged operated a pig stand at a tourist camp at the border of said city in Choctaw County on U. S. Highway No. 70. Subsequent to the time of the return of the indictment but prior to his conviction Rorie had been elected and qualified as a constable.

Joe Mobley was a night attendant at Everybody's Filling Station located in the center of the business section of said city, fronting on a hard-surfaced highway leading through said city to the west from the rough, timbered and sparsely settled country to its north and east. Several government witnesses were using said highway from October 1, 1936 to December 20, 1937, embraced within the period covered in the indictment as to the conspiracy, for the purpose of transporting non-tax paid whiskey in large quantities to the west into various sections of the state of Oklahoma, and in doing so it was necessary to pass directly through the city of Hugo where a number of the defendants, most of whom being appellants herein, were officers, or undergo inconvenience as well as danger of arrest by federal officers in detouring said city.

The effect in substance of the evidence on the part of the government is that appellants Mobley, Steen, Sayles and Rorie, not being officers at the time charged, participated in the conspiracy to their advantage or profit or to the profit of others in transportation or sale or both of the non-tax paid whiskey, in which the government witnesses Dick Driggers, William I. Cox, William A. Cotton, and Roy Denmark and others, were engaged on a large scale. The evidence on the part of the government of Dick Driggers, William I. Cox, Geraldine Cox, William A. Cotton, Roy Denmark, Hobson Denmark, Ernest Shaw, Donald Rountree, and Jack Eddleman disclosed that the conspiracy existed beginning with the fall of 1936 and continuing to December 20, 1937.

Burl Sayles, convicted under said charge, no appeal being prosecuted, resided about 16 miles north and east of said city, and was engaged in the manufacture of moonshine (non-tax paid) whiskey, and as a party to said conspiracy sold and supplied same to the parties thereto as herein indicated.

Mobley, Bearden, Hall, Rorie and Steen, defendants, were identified by said Driggers as parties to and participants in the conspiracy. Driggers testified that all of said parties other than Mobley sold and transported and delivered to him non-tax paid whiskey at said city of Hugo, and in effect that Mobley brought him into the conspiracy.

The contention made is that the evidence is insufficient to connect Mobley or Steen with the conspiracy charged in count 1. Evidence of Driggers connects each one of them. Driggers identified Mobley and Steen in their activities, giving in detail acts and conversations between Mobley and him, who had previously been convicted of an offense involving the internal revenue act, resulting in contacts immediately with Hall and Bearden by Driggers, thereby leading to purchase of non-tax paid whiskey by him from them in the city of Hugo and his not going out for it in the "sticks" where non-tax paid (moonshine) whiskey was manufactured for illicit sale. His evidence presents the issue as to Mobley participating and aiding therein, though denied by Mobley, supported by evidence as to good character arising since his conviction in 1934, the determination of the issue being for the jury. The same acts that were set in motion with Hall and Bearden by Mobley also led to contact of Driggers with Steen, through instrumentality of Hall and Bearden, and also to the procuring of non-tax paid whiskey in the city of Hugo from Steen. Driggers not only identified Steen but also described in detail the car driven by him, no effort being made by the defense in any way during the trial to show that Steen did not drive such car. On government's theory, which is supported by the evidence of Driggers, William I. Cox, and Geraldine Cox, his wife, Shaw, Cotton, Rountree, and the two Denmarks, and Eddleman, this course of cooperation and conjunction as arranged on the part of Mobley reached not only through officers Bearden and Hall, but also through Lindley, chief of police. Whilst the evidence as to Lindley rests more on circumstances, it was sufficient for the issue that he was a participant and party to the conspiracy to be submitted to the jury. The only question for the court on review is as to whether the facts as found by the jury operate as substantial proof of guilt.

The evidence by Driggers, William I. Cox, Ernest Shaw, William A. Cotton, and the two Denmarks, on the part of the government, if believed by the jury, and by its verdict it was so believed, proved that Mobley, Bearden and Hall were working in conjunction in violating the internal revenue laws of the United States in the possession and transportation of whiskey on which the tax had not been paid, and that Hall, Bearden and Steen delivered such whiskey to Driggers, and that Bearden and Rorie on another occasion delivered such non-tax paid whiskey to Driggers, and at another time to Cox, and that Bearden permitted for a consideration under terms of an oral agreement made by him with Cox, providing for said Cox to transport a load of whiskey on which tax had not been paid in an automboile through the city of Hugo, and that said Bearden was not to arrest him or inform against him for such transportation, it being the duty then and there of said Bearden as an officer not only to inform against him but also to arrest said Cox therefor, and further, that Burl Sayles gave to Cox the sum of $10 in money with instructions to deliver the same to Oscar Bearden as payment for the permission which Bearden as such officer was giving defendant Sayles as to immunity in the hauling of non-tax paid whiskey through said city, same being delivered by said Cox to Bearden, telling him at time of delivery that the money was sent to him by Burl Sayles, and also that Oscar Bearden accompanied said William I. Cox to the premises of Howard Rorie located on U. S. Highway 70, where said Rorie was then operating a cabin camp west of the city of Hugo in Choctaw County, the said Cox then and there arranging to buy and did receive from said Rorie at the time cases of non-tax paid whiskey, and the said Burl Sayles on another occasion sold and delivered to William I. Cox cases of non-tax paid whiskey, for which Cox paid Sayles at the rate of $7 a case, and on or about December 15, 1937 James H. Lindley, chief of police at Hugo, and Oscar Bearden, constable, arrested one William A. Cotton for having in his possession near the city of Hugo 12 cases of whiskey, non-tax paid, and took from his person a certain sum of money, consisting of silver dollars and currency of the aggregate amount of about $70, and that said Lindley then and there kept said whiskey and money and on the next day told him "to get out of town before the federals found out about this as they might arrest him," and gave said Cotton the sum of $5 with which to buy gasoline in leaving said city.

It was proved that Driggers had been theretofore convicted of violating the internal revenue laws, sentenced to serve a term of 18 months, and on another charge, character of the latter offense and punishment assessed not disclosed, and that William I. Cox theretofore had been convicted of a felony (kind not disclosed in the evidence) and served a term in a penitentiary, and that when a boy he had been sent to an industrial or reform school. Cox was supported in his testimony by his wife, Geraldine Cox, there being nothing in the record to indicate that she was ever convicted of any crime nor is her reputation in any way assailed in the evidence, other than by the fact that she had accompanied her husband on two occasions when he had gone to or through Hugo for the purpose of procuring whiskey.

The evidence of Ernest Shaw also supports the government's theory, Shaw at that time serving a sentence in a penitentiary for robbery and had been convicted of another offense, the record not disclosing the kind or punishment.

Roy Denmark and Hobson Denmark also testified on part of the government in support of the charges, each having been convicted and served a sentence for violating the internal revenue laws.

Steen and Sayles did not take the witness stand. All other defendants testified in their own behalf, specifically denying guilt.

Pat Reddick, at that...