Jezewski v. United States

• Decision Date: 10 June 1926
• Docket Number: No. 4497-4499,4554-4556.,4517,4501,4503-4511,4523,4530,4497-4499
• Citation: 13 F.2d 599
• Parties: JEZEWSKI v. UNITED STATES, and eighteen other cases.
• Court: U.S. Court of Appeals — Sixth Circuit

13 F.2d 599 (1926)

JEZEWSKI v. UNITED STATES, and eighteen other cases.^*

Nos. 4497-4499, 4501, 4503-4511, 4517, 4523, 4530, 4554-4556.

Circuit Court of Appeals, Sixth Circuit.

June 10, 1926.

COPYRIGHT MATERIAL OMITTED

Ira J. Pettiford, of Detroit, Mich., for plaintiff in error Laskolin.

Louis W. McClear, of Detroit, Mich. (McClear & Toy, Percy W. Grose, and Fleming, Baird & Morden, all of Detroit, Mich., on the brief), for plaintiffs in error Jezewski and Wosinski.

Peter L. Jorgenson, of Detroit, Mich., for plaintiff in error Buhr.

Fleming, Baird & Morden, of Detroit, Mich., for plaintiff in error Havermann.

Delos G. Smith, U. S. Atty., of Detroit, Mich. (John B. Marshall, Sp. Asst. U. S. Atty., of Washington, D. C., on the brief), for the United States.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

DONAHUE, Circuit Judge (after stating the facts as above).

It is insisted on behalf of the plaintiffs in error that the verdict and judgment are not sustained by the evidence. The record does not present this question, at least, in so far as a large number of these plaintiffs in error are concerned. Motions for directed verdicts were made at the close of the government's case. These motions were not renewed at the close of all the evidence, and by proceeding with the introduction of evidence in their own behalf the defendants waived the error, if any, in overruling them. Cohen v. U. S. (C. C. A.) 294 F. 488, 491. It is claimed, however, that a number of these defendants did not introduce any evidence in their own behalf, and that as to them there was no waiver. If that contention were conceded, it is nevertheless clear, in so far as these motions relate to and include the defendants other than as hereinafter specifically mentioned, the motions were properly overruled.

As a general rule, conspiracy is not suspectible of direct proof of the unlawful agreement of the parties. It is sufficient if the evidence shows such concert of action, or such facts and circumstances from which the natural inference arises that the overt acts were in furtherance of a common design, intent, and purpose of the alleged unlawful conspiracy. Davidson v. U. S. (C. C. A.) 274 F. 285; Allen et al. v. United States, (C. C. A.) 4 F.(2d) 688, 691. In this case, however, there was the direct testimony of co-conspirators who had pleaded guilty, not only to the existence of the conspiracy, charged in the indictment, its intent, scope, and purpose, but also as to facts and circumstances from which the natural inference arises that these defendants, except as hereinafter mentioned, were parties thereto. This testimony is supplemented and corroborated by the testimony of other witnesses as to the same or similar facts and circumstances.

In order that the unlawful purposes of the conspiracy entered into between Squeres, Silverman, and Ferguson might be accomplished, two things were absolutely necessary, and a third desirable, if not essential. First, these distributors must arrange for the purchase of beer that had not been dealcoholized from the proprietors of the West Side Brewery; second, they must find some person or persons willing to purchase this beer from them and sell it at retail; and, third, police protection was desirable, if not actually necessary, to the success of their unlawful enterprise. The government offered testimony tending to prove beyond a reasonable doubt that these distributors did purchase for many months, and in large quantities, West Side beer that had not been dealcoholized, from some one or more of the partners, or the authorized agents of the partnership, operating the West Side Brewery, for which they paid $17.50 per one-half barrel, when the price of "near beer" was $4.50 per one-half barrel; that this beer was transported in trucks of the brewery company, by its agents and employees, to the Squeres saloon, and later distributed by the same employees and trucks to the saloon keepers; that some of these saloon keepers purchased this beer that had not been dealcoholized from the distributors, paying therefor $22.50 per one-half barrel, and sold the same over their counters at 25 cents per glass, when "near beer" was selling for 10 cents per glass; and that at least Ferguson, the lieutenant of police, and Silverman, promised the saloon keepers, as an inducement to purchase this beer and sell it at retail, that they would not be molested by the police officers. This court has no authority to determine the weight of the evidence. R. S. § 1011 (Comp. St. § 1672); Atlantic Ice & Coal Corp. v. Van (C. C. A.) 276 F. 646.

If this testimony is true, it is wholly unimportant whether the saloon keepers or the police officers actually knew where the distributors were obtaining this beer, or whether the manufacturers of the beer knew to whom the distributors were selling it or whether these several groups were all or in part strangers to each other. They were each and all engaged in a common unlawful purpose, and each and all contributed their part to the furtherance of the unlawful purpose of the continuing conspiracy initiated by these distributors, if they were not in fact originally parties thereto. Rudner v. U. S. (C. C. A.) 281 F. 516, 519, 520.

The fact, if it be a fact, that other beer of like alcoholic content was sold in Hamtramck during the continuance of the conspiracy alleged in the indictment is of no importance, except in so far as it may reflect upon the existence or nonexistence of this conspiracy. There may have been other conspiracies of like nature in reference to other beer, but the evidence is practically conclusive that Squeres, Silverman, and Ferguson entered into a conspiracy to buy, transport, and sell West Side beer, and the question here presented is whether the plaintiffs in error, or either of them, were parties to that particular conspiracy.

It is also assigned as error that defendants were denied a public trial. No such objection was made during the pendency of the trial, but whether or not this question is presented by this record need not be decided. This assignment of error is merely technical. The defendants were given a public trial as required by this provision of the Constitution. Callahan v. U. S., 240 F. 683, 153 C. C. A. 481; Davis v. U. S., 247 F. 394, 396, 159 C. C. A. 448, L. R. A. 1918C, 1164.

It is also assigned as error that the court erred in admitting testimony of acts and conversation after the conspiracy terminated. The witness Squeres testified that he had handled all the beer that came into Hamtramck from the West Side Brewery and that he handled beer until some time in December, 1923. There is no evidence tending to prove that Squeres handled any other beer, and therefore his testimony is not fairly subject to any...