Lucas v. United States
| Citation | 275 F. 405 |
| Decision Date | 09 June 1921 |
| Docket Number | 5619,5620. |
| Parties | LUCAS v. UNITED STATES. [1] HICKS v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
W. B King, Norton Montgomery, and William H. Dickson, all of Denver, Colo. (Quaintance, King & Quaintance, of Denver Colo., on the brief), for plaintiffs in error.
Harry B. Tedrow, U.S. Atty., of Boulder, Colo.
Before SANBORN, CARLAND, and STONE, Circuit Judges.
Separate writs of error by Roy Lucas and by Jack Hicks from conviction for conspiracy to violate the Reed Amendment (39 Stat. 1069 (Comp. St. 1918, Comp. St. 1918, Comp. St. Ann. Supp. 1919 Secs. 8739a, 10387a-10387c)). Lucas and Hicks were jointly indicted in four separate cases, which were consolidated for trial. The conviction was under one of the indictments charging conspiracy at Cheyenne, Wyo., to transport intoxicants from that place to Denver, Colo. The points here urged are: Lack of jurisdiction; wrongful consolidation of the four cases for trial; insufficiency of the evidence; erroneous admission of evidence; erroneous instruction and wrongfully permitting the jury to separate after submission of the case.
The indictment was in Colorado, jurisdiction there being based upon an overt act. The overt act charged was that the accused, on a certain date, caused intoxicants to be transported in interstate commerce from Cheyenne into Larimer county, Colo., in an automobile driven by one Ray. The objections urged to this jurisdiction are, that the indictment does not allege what physical act was done in Colorado; that the offense contemplated by the conspiracy was completed before Colorado was reached in the course of transportation; that it was necessary to show that Ray was a conscious party to the conspiracy; that the bare allegation that accused 'caused to be transported' is fatally defective as a statement of a mere conclusion, since it does not allege the acts done by the accused to cause such transportation in Colorado. The first criticism is baseless, as the indictment clearly charges the physical act of transportation by automobile in Colorado. The contention that the offense was completed before the Colorado state line was reached is untenable. A conspiracy to do a certain thing is not ended for all purposes when the plan is completed. It carries on through every act done in the execution of that plan. The conspiracy charged here was to transport intoxicants to Denver, and the carriage by an automobile of those intoxicants into Larimer county as a part of the trip was an act in direct execution of the conspiracy, and amply sufficient for the purpose of lodging in the District Court for Colorado jurisdiction of the conspiracy. Block v. United States, 267 F. 524, 529, recently decided by this court, is directly controlling. The contention that the driver of the automobile in Larimer county must have been a conscious party to the conspiracy in order for his acts there in transporting the liquor to be a basis of jurisdiction, is frivolous. The allegation of the indictment as to causing the intoxicants to be transported would be sufficient as following the statute, but here the method, time, and place of transportation are set out clearly. The attack upon the jurisdiction of the court cannot stand.
The objection to the consolidation of the four cases is not well taken. In each case the defendants were the same. In two of the cases each charged a conspiracy to violate the Reed Amendment, differing only as to the place where the conspiracy was alleged to have been entered into. The other two charged conspiracy to transport liquor not properly labeled, differing only as to the place of the conspiracy. All of the cases related to the same transaction. No prejudice is seen to have resulted from the consolidation of the cases for trial, and the discretion of the trial judge in ordering the consolidation is approved.
The contention that the verdict of acquittal in one of the other cases, tried at the same time, is inconsistent with conviction in this case is unsound. The case in mind was an indictment charging conspiracy in Denver, Colo., to violate the Reed Amendment by transporting intoxicants from Cheyenne, Wyo., into Denver, Colo. The overt act was the same in that indictment and in the present case. Obviously, the two indictments were framed to fit the proof as to whether the conspiracy had been entered into in Denver or in Cheyenne. The jury decided that the conspiracy was formed in Cheyenne. The inevitable result of such a view was to convict in the present case, and acquit in the other case.
It is also contended by Lucas that he should have been permitted a separate trial. We find no sufficient basis for error in denial of this request. The evidence was amply sufficient to justify conviction.
The evidence claimed to have been erroneously admitted was a confession of the defendant Hicks. It is claimed that no proper foundation was laid for the admission of this evidence, because it was not shown that the confession was...
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