Hogan v. United States, 5991.
| Decision Date | 03 April 1931 |
| Docket Number | No. 5991.,5991. |
| Citation | 48 F.2d 516 |
| Parties | HOGAN et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Edwin H. Grace and Edwin C. Hollins, both of New Orleans, La., for appellants.
Philip H. Mecom, U. S. Atty., and Elmer A. Mottet, Asst. U. S. Atty., both of Shreveport, La., and A. W. Henderson, Sp. Asst. to Atty. Gen., for the United States.
Before FOSTER, Circuit Judge, and HUTCHESON and SIBLEY, District Judges.
On an indictment charging in the first count conspiracy to handle intoxicating liquors in violation of both the National Prohibition and the tariff laws, in the second count unlawful importation of intoxicating liquors, in the third count unlawful concealment thereof after importation, and in the fourth count unlawful transportation, ten defendants, appellants here, were convicted. Four were convicted on all four counts; four on counts 2, 3, and 4, while two, Bryan and Smith, were convicted on the conspiracy count alone.
Appellants complain of the action of the court below in overruling their motion to quash and their demurrers to the four counts of the indictment, while error is assigned to the ruling in all the counts, the brief argues only the error as to the conspiracy count submitting the point as to the other three counts without argument.
There is no merit in the attack on the conspiracy count. It is competent to charge, and the indictment does charge, simply and clearly a single conspiracy to violate both the tariff and the prohibition acts, and proof as to either will support conviction. McDonnell v. U. S. (C. C. A.) 19 F.(2d) 801. Not only in the general charging part of the indictment, but in the statement of the overt acts, the conspiracy is fully and sufficiently alleged. Miller v. U. S. (C. C. A.) 300 F. 529; Hartson v. U. S. (C. C. A.) 14 F.(2d) 561; Tomplain v. U. S. (C. C. A.) 42 F.(2d) 203; Perry v. U. S. (C. C. A.) 39 F.(2d) 52; Wong Tai v. U. S., 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545.
Nor was there error in the court's action on the other counts except the third. The third count failing to charge that the liquor in question had theretofore been unlawfully imported, and being therefore defective, the demurrer to this count should have been sustained. Hartson v. U. S. (C. C. A.) 14 F.(2d) 561.
This error is harmless, however, because the sentences imposed upon the defendants were less than might have been imposed upon the valid counts of the indictment.
The contention which the appellants mainly labor is that there was error in the admission of the evidence of the chief Government witness himself a coconspirator, as to conversations and transactions had in January and February, 1929, at Abbeville, La., with one of the defendants, Hogan, whom the evidence shows to have been one of the moving spirits in the conspiracy, as to shipments of liquor from Abbeville, appellants claiming that this was in effect an admission in proof of other crimes than those charged, and that it was therefore highly prejudicial to them.
The point is wholly without merit. While it is true that the indictment does charge in the conclusion of the stating part that "thereafter intoxicating liquors were to be transported to Gueydan, Louisiana, from which point they were again to be transported to various places," the indictment is not and cannot be thereby limited to the particular Gueydan transaction referred to in the statement of overt acts, and in the substantive counts of the indictment. For not only is the date of the beginning alleged as on or about April 1, 1929, of course immaterial as to fixing the starting time of the conspiracy, but the indictment expressly alleges that the conspiracy was begun and continued at Abbeville and Gueydan in the parish of Vermillion, at Lake Arthur, in the parish of Jefferson Davis, and in the parish of Cameron, state of Louisiana.
More than that, it continues alleging generally that the...
To continue reading
Request your trial
-
U.S. v. James
...United States, the charge is sustained by adequate pleadings and proof of conspiracy to commit any one of the offenses. Hogan v. United States, 5 Cir.,48 F.2d 516 (1931), cert. den., 284 U.S. 668, 52 S.Ct. 42, 76 L.Ed. 565; Christiansen v. United States, 5 Cir., 52 F.2d 950 (1931); McWhorte......
-
Devoe v. United States, 11215.
...has left the precinct or who, for some other valid reason, will be unable to be present when a vote is cast for him. 2 Hogan v. United States, 5 Cir., 48 F. 2d 516, 518; Wallace v. United States, 7 Cir., 243 F. 300, 306; Kanner v. United States, 7 Cir., 34 F.2d 863, 866, 867; Bedell v. Unit......
-
United States v. Bates
...Proof of conspiracy to violate any one of them will support conviction. Taylor v. United States, 7 Cir., 2 F.2d 444; Hogan et al. v. United States, 5 Cir., 48 F. 2d 516. This can work no subjection to double jeopardy, for a finding of guilty as to conspiracy only involves no substantive off......
-
Lewis v. Reynolds, 369.
... ... revenue, equalize duties, and encourage the industries of the United States, and for other purposes,' approved August 5, 1909, the Act entitled ... ...