Jianole v. United States

• Decision Date: 01 May 1924
• Docket Number: 6336.
• Parties: JIANOLE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

299 F. 496

JIANOLE v. UNITED STATES.

No. 6336.

United States Court of Appeals, Eighth Circuit.

May 1, 1924

E. D O'Sullivan, of Omaha, Neb. (Jamieson, O'Sullivan &amp Southard and Raymond T. Coffey, all of Omaha, Neb., on the brief), for plaintiff in error.

George A. Keyser, Asst. U.S. Atty., of Omaha, Neb. (James C Kinsler, U.S. atty., of Omaha, Neb., on the brief), for the United States.

Before LEWIS, Circuit Judge, and BOOTH and SYMES, District Judges.

SYMES District Judge.

The defendant Jianole was prosecuted on an indictment for conspiracy in violation of section 37 of the Criminal Code (Comp. St. Sec. 10201), in that he and one Longnecker unlawfully conspired to violate title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, Secs. 10138 1/2-10138 1/2z), to unlawfully possess and to unlawfully transport intoxicating liquor in the city of Omaha, Neb. Both were convicted, and this appeal is prosecuted by Jianole alone.

Fifteen errors are assigned, and we will discuss those worthy of consideration in order.

The first is that the evidence was not sufficient to justify a finding that the defendant was guilty beyond a reasonable doubt. The evidence discloses that city police officers arrested the two defendants in a Ford automobile, in which they found two five-gallon jugs of whisky. The officers were on another errand, and met the defendants by chance about 2 o'clock in the morning, stopped the car, and searched it. Longnecker testified that the liquor was his; told how he obtained it; that he put it in the car, and was driving along the street, when he met Jianole, who got into the car. The latter testified that he was out looking for a woman to take care of his wife, who was sick, and that Longnecker offered to transport him; that he failed to find the nurse, and then asked Longnecker to take him to a drug store to get a prescription filled; that he did not know there was any liquor in the car, and nothing was said about it.

The crime charged here, according to the authorities, is a conspiracy of two or more persons by concerted action to accomplish a criminal and unlawful purpose, or some purpose not in itself criminal, by criminal or unlawful means. It was not necessary for the government to prove here that the defendants actually agreed in formal terms upon the design, yet there must be evidence from which some concerted action can be inferred; for an agreement to do the unlawful act charged was as indispensable an ingredient as the overt act done in pursuance thereof. There must be evidence sufficient to satisfy a jury beyond a reasonable doubt that these two parties entered into an agreement to accomplish a common and unlawful act. In Pettibone v. U.S., 148 U.S. 197, 13 Sup.Ct. 542, 37 L.Ed. 419, the court said:

'The confederacy to commit the offense is the gist of the criminality under this section, although to complete it some act to effect the object of the conspiracy is needed.'

It is true, as stated by Judge Carland in Murry v. U.S. (C.C.A.) 282 F. 617, that--

'The jury had the right to draw from the evidence introduced the inference that the defendants had agreed to have possession of the whisky and to transport it. It is impossible in most cases to show by direct evidence that the persons charged met together and agreed to do certain unlawful things. These agreements are usually made secretly, and it thus results that nearly all conspiracies are proven by circumstantial evidence.'

But there were evidentiary facts in that case from which the necessary inference could be drawn. All we have here, however, is the fact that the defendants were together in an automobile that contained liquor, which this defendant, according to the evidence, did not know was there. It might be sufficient proof of a statutory misdemeanor-- possession or transportation of liquor-- but the indictment here charges a felony (section 335, Criminal Code; U.S. Comp. Stats. Sec. 10509), and accordingly requires proof of knowledge of facts on defendant's part, from which an intent to engage in the conspiracy may be inferred. Mere acquiescence is not sufficient. The evidence must show intentional participation. U.S. v. Newton (D.C.) 52 F. 275. Mere failure to prevent another from committing the crime is not sufficient. U.S. v. McClarty (D.C.) 191 F. 518.

The defendant next complains that the venue was not proven, and we agree. While it is true in a charge of this kind that the defendant may be tried either in the jurisdiction where the conspiracy was entered into, or that of the overt act (Hyde v. U.S., 225 U.S. 347, 32 Sup.Ct. 793, 56 L.Ed. 1114, Ann. Cas. 1914A, 614; Moran v. U.S. (C.C.A.) 264 F. 768), yet there is no evidence of either in the instant case, and we are asked to infer proof of venue because the defendant was arrested by police officers of the city of Omaha, and to take judicial notice that certain streets are within the jurisdiction of the trial court.

This we cannot do. Vernon v. U.S., 146 F. 121, 76 C.C.A 547. But this error was not called...