Lancaster v. United States
| Decision Date | 28 March 1930 |
| Docket Number | No. 5699.,5699. |
| Parties | LANCASTER et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Thomas W. Fielding, of Gainesville, Fla., H. S. Phillips and Wm. M. Gober, both of Tampa, Fla., for appellants.
Fred Cubberly, U. S. Atty., and G. E. Hoffman, Asst. U. S. Atty., both of Pensacola, Fla.
Before BRYAN and FOSTER, Circuit Judges, and DAWKINS, District Judge.
The indictment in this case charges a conspiracy unlawfully, first, to import from Cuba, and then to transport and sell in the United States, intoxicating liquor for beverage purposes. It was brought against Lancaster, Scott, Tate, Williams, and Colson, who were convicted, and against three others who were acquitted. All who were convicted, except Colson, have joined in this appeal. Of the overt acts alleged, to effect the object of the conspiracy, the first is that on July 31, 1927, the four appellants made a trip from Tampa to Havana, and the second that on August 7th they returned from Cuba to Florida. Other overt acts allege that on August 12th appellants Scott, Lancaster, and Tate held a conference with the defendant Colson; that on the 16th Scott arrived in Cuba; that later on in the same month Scott caused 300 cases of liquor to be brought from Cuba into the United States at or near the mouth of the Suwannee river in Florida; and that he and others of the defendants caused the liquor to be transported up the river by boat and overland by automobiles and trucks to the town of Trenton and other places unknown to the grand jury.
Evidence adduced by the government was sufficient to prove the conspiracy and the overt acts. Walter Depew testified that he was a fisherman, lived at Cedar Keys, and was well acquainted with the adjacent waters at and near the mouth of the Suwannee river; that on August 10 he was employed by Scott to accompany him to Havana, to come back from Cuba on a boat carrying liquor, and to navigate that boat from a point in the Gulf off the Cedar Keys lighthouse to Ranch Bar shoals near the mouth of the Suwannee river; that he went to Scott's home with him, and was present at the conference held on the night of the 12th by Scott, Lancaster, and Tate with Colson, at which Colson agreed to join the conspiracy and contribute $1,700 toward the purchase price of liquor and the expense of transporting it; that he accompanied Scott to Havana, occupied the same room with him at a hotel, and was present when he purchased 300 cases of liquor from a business concern known as Ron Caney; that the liquor was loaded on a schooner at Sagua la Grande, where Scott left him; that he came on this schooner, which, after a voyage lasting about three days, landed safely at Ranch Bar shoals, where Scott, Williams, Colson, and the defendants who were acquitted came to it in two small boats; that the liquor was transferred into one of these small boats, taken up the river, transferred to automobiles, and taken in them to a barn at Trenton where he saw the appellant Tate.
This witness testified, over objection and exception, that at the time he was employed to make the trip Scott told him that he and the other appellants had taken a trip to Havana, and had made all arrangements to get the liquor. He was corroborated as to the transfer of the liquor from the schooner and the taking of it up the river by J. R. Richard, who testified that he operated the small boat to which the cargo was transferred, and to some extent by his brother, who testified that Scott and two other men, who were identified by Richard as Colson and Lancaster, offered to employ him to go in his boat to meet the schooner, but that, being unable or unwilling to go, he took them to Richard's house.
The defense of appellants was a general denial, in support of which they each offered evidence tending to prove an alibi. They admitted that they took the trip to Havana and returned on August 7th, but denied that they held a conference on August 12th. Scott denied that he took Depew to Havana, although he admitted that they arrived there on the same boat from Key West, and that they were registered in Havana at the same hotel; he said he did not remember whether they occupied the same room. On the 17th Scott deposited in a bank at Havana New York draft for $5,500 and travelers' checks for $1,000. The draft was indorsed by "Ron Caney, S. A., M. Casabielle, Presidente." Scott testified that this indorsement was merely for the purpose of identification, and that he did not pay any of it to the indorser, that he did not know where his pass book was, that he drew the whole amount of his deposit out by checks, received his canceled checks, but did not have them with him or know where they were. A charge to the effect that it was not necessary to prove that the conspiracy was successful was excepted to on the ground that it was misleading, in that the court failed to charge also "in that connection" that, in order to convict, the jury must believe that some one or more of the overt acts had been committed. In another part of the charge the court instructed the jury that at least one of the overt acts must be proved beyond a reasonable doubt.
After this appeal was taken, the district court was given leave by order of this court to pass on a motion for new trial, which was based on the grounds (1) of Walter Depew's sworn admission after the trial that he was satisfied he was mistaken in his testimony identifying Lancaster and Tate as parties to the conference of August 12th, and identifying Tate as the person whom he saw at the barn where the liquor was stored; (2) of the bias and prejudice of W. F. Osteen, foreman of the jury; (3) of misconduct of jurors; and (4) of newly discovered evidence. That motion, after a full hearing of evidence, in the form of supporting and opposing affidavits, was denied by the district judge. The witness Walter Depew, after making affidavits sustaining the first ground, contradicted them by stating that he was not mistaken in his testimony given at the trial as to the identity of any of the appellants. By way of explanation he...
To continue reading
Request your trial
-
Department of Water and Power v. Anderson
...v. United States, 289 U.S. 1, 18, 53 S.Ct. 465, 470, 77 L.Ed. 993; Moore v. United States, 9 Cir., 1 F.2d 839, 841; Lancaster v. United States, 5 Cir., 39 F.2d 30, 33; Davis v. United States, 5 Cir., 47 F.2d 1071, 1072; Williams v. United States, 6 Cir., 3 F.2d 933, 936; Ramsey v. United St......
-
Young v. United States
...States, 8 Cir., 300 F. 769; Williams v. United States, 6 Cir., 3 F.2d 933; Ramsey v. United States, 6 Cir., 27 F.2d 502; Lancaster v. United States, 5 Cir., 39 F.2d 30; Davis v. United States, 5 Cir., 47 F.2d 1071, certiorari denied 284 U.S. 646, 52 S.Ct. 25, 76 L.Ed. 549; Manhattan Oil Co.......
-
Brabham v. State of Mississippi
...35 S.Ct. 783, 59 L.Ed. 1300; Davis v. U. S., 5 Cir., 47 F.2d 1071; Economon v. Barry-Pate Co., 55 App.D.C. 143, 3 F.2d 84; Lancaster v. U. S., 5 Cir., 39 F.2d 30; Ramsey v. United States, 6 Cir., 27 F.2d 502; Stewart v. United States, 8 Cir., 300 F. 769-788; Consolidated Rendering Co. v. Ne......
-
Rubenstein v. United States
...16, 59 L.Ed. 129; Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654; Id., 348 U.S. 904, 75 S.Ct. 288; Lancaster v. United States, 5 Cir., 39 F.2d 30; Albizu v. United States, 1 Cir., 88 F.2d 138, certiorari denied, 301 U.S. 707, 57 S.Ct. 940, 81 L.Ed. Even though it was stat......