Henderson v. United States

• Citation: 237 F.2d 169
• Decision Date: 23 October 1956
• Docket Number: No. 15726.,15726.
• Parties: Charles T. HENDERSON, Jr., George Truitt Robbins and John B. Dees, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

237 F.2d 169 (1956)

Charles T. HENDERSON, Jr., George Truitt Robbins and John B. Dees, Appellants, v. UNITED STATES of America, Appellee.

No. 15726.

United States Court of Appeals Fifth Circuit.

September 26, 1956.

Rehearing Denied October 23, 1956.

S. L. Scruggs, Parks M. Carmichael, Joseph A. McGowan, Gainesville, Fla., Charles A. Savage, James J. Caruso, Ocala, Fla., Zach H. Douglas, Jacksonville, Fla., W. N. Avera, Scruggs, Carmichael, Avera & McGowan, Gainesville, Fla., for appellants.

Hayford O. Enwall, Asst. U. S. Atty., Gainesville, Fla., Harrold Carswell, U. S. Atty., Tallahassee, Fla., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and JONES, Circuit Judges.

RIVES, Circuit Judge.

Under 18 U.S.C. § 371, the three appellants were convicted of a conspiracy to violate certain sections of the Internal Revenue Code which proscribe the various activities connected with the distilling of non-taxpaid, or moonshine, whiskey. During the period of the alleged conspiracy, that is from August 15, 1954 to February 8, 1955, the appellant George Truitt Robbins was Sheriff of Levy County, Florida; the appellant Dees was a resident of Jacksonville, Florida, charged with having furnished financial backing for the illicit operations; and the appellant Henderson participated in the actual operation of the still.

Three other original defendants were not convicted. John C. Partin, an alleged go-between for the bribery of the sheriff was discharged on motion for judgment of acquittal. The jury returned verdicts of not guilty as to Luther M. White, who admitted furnishing financial aid to the operations but claimed entrapment, and as to Ernest C. Blair, a Supervisor for the Beverage Department of the State of Florida, charged with having accepted bribe money.

No brief has been filed, nor argument made, on behalf of the appellant Dees, but the Government does not move for dismissal of his appeal under Rule 22 of this Court, and we therefore consider his appeal on its merits along with each of the other two appeals.

Claude W. Wood, the principal or star witness for the Government, had been a policeman of Ocala, Marion County, Florida, and while so serving he was also a deputy sheriff of the County. He had, by request, resigned from the police force, after which he moved to Gainesville, Florida, where he worked as a roofer for several months and drove a taxicab for about a month. While Wood was in Gainesville, another Marion County deputy sheriff solicited his aid in the detection of liquor law violators in Marion County, which adjoins Levy County.

Thereafter, in August, 1954, Wood made several trips to see Henderson at Henderson's home some 16 miles east of Ocala, and talked to him about going into the moonshine whiskey business. On the first two occasions, at least, Henderson refused, but he finally succumbed, and he and Wood agreed to go into the moonshine business. Wood then returned to Marion County where he and his wife stayed at the home of his father and mother.

In early September, 1954, the Sheriff of Marion County and some of his deputies carried Wood to a series of conferences with C. M. Starry, District Supervisor of the Florida State Beverage Department, who had the responsibility of supervising the enforcement of the state beverage laws in ten counties, including the counties of Marion and Levy. Ernest C. Blair, a defendant in the case discharged by verdict of not guilty, was one of seven supervisors who worked under Starry. As a result of these conferences with Starry, Wood was, on September 9, 1954, secretly appointed a Special Investigator for the Office of the Attorney General of Florida.

Wood testified that Henderson knew of a still pot and condenser in Putnam County which he said belonged to J. B. Dees, one of the appellants; that, on October 6th, Henderson accompanied Wood to Jacksonville to see Dees; that there they arranged for the use of the still pot and condenser and Dees advanced them $107.00 with which to set up some fermenter barrels for him at the still site; that it was at Dees' directions that the place of operations was changed from Marion to Levy County.

On October 12, Henderson and Wood made their "first run", producing seven five-gallon jugs of whiskey. Successive runs were made on October 16, 21, 23, 26 and 27th, November 9 and thereafter. The site of the still was moved twice.

The Federal Government did not enter into the investigation until December 27, when Criminal Investigator William D. Behan of the Alcohol and Tobacco Tax Unit of the Treasury Department, stationed at Miami, was assigned by the Investigator in Charge to assist Wood in the investigation. Under the alias of Forest Crooke, Behan thereafter participated in the illicit operations. Behan was able to give positive testimony connecting Henderson with the operation of the still, Dees with its financing, and Robbins with being bribed to furnish protection in his capacity as Sheriff.

No evidence was offered on behalf of Dees. Henderson admitted his participation in the operation of the illicit distillery, but denied that he had contacted Dees or was otherwise a party to the conspiracy. His principal defense was that he had been entrapped by Wood.

Without dispute, Wood did induce Henderson to enter into the operation of the illicit still, and Henderson was at first reluctant to join. It further appears that, though Wood had resigned as a police officer of the City of Ocala, he had retained his card as deputy sheriff and was qualified and acting as such, and made use of that office in persuading Henderson to enter into the moonshine whiskey business. Nevertheless, the district court declined to charge on entrapment as to Henderson, apparently upon the theory that Henderson denied that he was a party to the conspiracy, and thereby precluded himself from relying on entrapment.¹

The reasoning of the district court was, of course, correct to the extent that the fact that Henderson had committed illegal acts which furthered the object of the conspiracy did not constitute him a conspirator unless he did so with some knowledge of the conspiracy,² and, hence, that Henderson, denying that he was a party to or knew of the conspiracy, could not with entire consistency claim that he was entrapped into committing that offense. The district court may well have relied upon the language of this Court in Hamilton v. United States, 5 Cir., 221 F.2d 611, 614:

"Entrapment is a valid, positive defense, in certain circumstances, the invocation of which necessarily assumes that the act charged was committed. 22 C.J.S., Criminal Law, § 45."

The actual holding in that case was that the appellant was entitled to have the issue of entrapment properly submitted to the jury. Other courts have, however, definitely held that a defendant's denial of one specific act charged, such as a sale of whiskey,³ or a sale or possession of narcotics,⁴ would necessarily preclude him from relying on the defense of entrapment.

Rule 8(e) (2) of the Federal Rules of Civil Procedure, 28 U.S.C.A. provides that a party may plead as many separate defenses as he has "regardless of consistency". No similar provision occurs in the Federal Rules of Criminal Procedure, and, indeed, no such provision would be appropriate in view of the fact that all possible defenses not raised by appropriate motion are embraced within the plea of not guilty. Rule 12 (a), Federal Rules of Criminal Procedure, 18 U.S.C.A. Indeed, long prior to the adoption of those rules, it had been settled that the defense of entrapment was raised by the plea of not guilty. Sorrells v. United States, 287 U.S. 435, 452, 53 S.Ct. 210, 77 L.Ed. 413. The fact, however, that such a plea raised both issues, that is, that Henderson did not enter into the conspiracy charged and that he was entrapped so to do, does not necessarily mean that he can rely upon both defenses, but simply changes the form of the question by transferring it from the pleadings to the proof. Substantially, the question remains the same.

Corpus Juris states the rule in criminal cases as follows:

"While there is authority to the contrary, it is generally held that inconsistent defenses may be interposed in a criminal case. Accordingly, the fact that one defense is on the theory that accused did not commit the offense, as where he relies on alibi, does not deprive him of the right to avail himself of other defenses, although based on the theory of justification or excuse." 22 C.J.S. Criminal Law, § 54, p. 118.

To like effect is Abbott, Criminal Trial Practice (4th ed., 1939) § 371, p. 675.

The common goals of all trials, civil and criminal, of issues of fact is to arrive at the truth, and it would seem that inconsistent positions should be permitted or not permitted according to whether they might help or hinder a search for the truth. Perhaps that may depend upon the degree of inconsistency.

In most common law jurisdictions, prior to the advent of statutes or rules like the Federal Rules of Civil Procedure, the admissibility of inconsistent pleadings in civil actions depended upon their degree of inconsistency. With ample citations of authority, the rule is thus stated in 71 C.J.S., Pleading, § 125, pp. 275, 276:

"The test of inconsistency inhibited, whether merely an inconsistency or an inconsistency that is contradictory or repugnant, is whether the proof of one necessarily disproves the other. It is no test that if one is proved the other is unnecessary. * * *"

See also, 41 Am.Jur., Pleading, §§ 47, 48.

If the evidence fails to prove by the required standard that the defendant committed the act charged or had the requisite criminal intent, then, of course, the defense of entrapment is unnecessary. See Sassnett v. State, 156 Fla. 490, 23 So.2d 618. Usually, however, that cannot be foretold when the proof is being offered in advance of the jury's verdict. Then, according to the circumstances and the nature of the case...