Martin v. United States
| Decision Date | 15 April 1927 |
| Docket Number | 4879.,No. 4878,4878 |
| Citation | 17 F.2d 973 |
| Parties | MARTIN v. UNITED STATES. WENTZELL v. SAME. |
| Court | U.S. Court of Appeals — Fifth Circuit |
S. C. Mize and J. H. Mize, both of Gulfport, Miss., and J. McHenry Jones and P. D. Beall, both of Pensacola, Fla., and Edw. Dinkelspiel, of New Orleans, La. (John C. Davey, of New Orleans, La., on the brief), for plaintiff in error Martin.
S. C. Mize and J. H. Mize, both of Gulfport, Miss., and J. McHenry Jones and P. D. Beall, both of Pensacola, Fla., for plaintiff in error Wentzell.
Fred Cubberly, U. S. Atty., of Gainesville, Fla., and G. E. Hoffman, Asst. U. S. Atty., of Pensacola, Fla.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
Peter Martin and Louis Wentzell were convicted as charged in an indictment brought against them and a number of other defendants under section 37 of the Criminal Code (Comp. St. § 10201) alleging a conspiracy to import, transport, possess, and sell intoxicating liquors for beverage purposes, in violation of the National Prohibition Act (Comp. St. § 10138¼ et seq.). Several overt acts to effect the object of the conspiracy were set forth and proved by the testimony.
An assignment of error is to the effect that the indictment was insufficient, in that it failed to allege a conspiracy entered into within the jurisdiction of the court, and what offenses the defendants conspired to commit. The same form of indictment has been upheld by this court, although it need not be denied that it contains much superfluous language. A conspiracy is finally and directly alleged to commit certain definite acts that are offenses against a law of the United States. There is another assignment which complains that the court refused to charge that possession of liquor created no presumption against defendants, but the bill of exceptions shows that the court gave the charge as requested.
The principal assignments of error are that the court refused at the close of all the evidence to direct the jury to find defendants not guilty, and that during the progress of the trial the court admitted, over objection and exception, testimony of the sheriff of Calhoun county relating to a conversation which he had with Wentzell, in which the latter asked for permission to transport liquor through that county. It is undisputed that defendants, in August of 1925, left Biloxi, Miss., where they had been living, and went to Gulf county, Fla.; that they bought a tract of land in that county lying on Wetappo creek; that the purchase price of $1,600 was paid by Martin, though the title was taken in Wentzell's name; that Wetappo creek was navigable, and opened into a canal which connects Apalachicola Bay and St. Andrews Bay.
There was evidence for the government to the following effect: After the purchase of the land, a camp was established on Wetappo creek. A fence was built around it, and a gate at the entrance was kept locked. There were four houses, one of which had a large basement underneath, which was reached through a trapdoor. Wentzell remained at this camp. Martin continued to reside in Biloxi, but made at least three visits to the camp. A boat 65 feet long was used in connection with the enterprise, and could get into the Gulf either by way of St. Andrews Bay or Apalachicola Bay. At least on one occasion a trip was made into the Gulf, and a large quantity of liquor was obtained from another boat outside, and brought back to camp. A number of sales were made from time to time until April 1926, when prohibition officers made a raid and seized the boat, with a large quantity of liquor on board, and arrested several of the defendants. Martin was not present. At that time Wentzell admitted the boat and liquor belonged to him. Some time before the seizure and arrest, Wentzell offered to pay money to the sheriff of the adjoining county of Calhoun for permission to sell liquor in and to transport liquor through that county.
Among the witnesses who testified for the government was Paul Parker, 19 years old, who lived at Panama City, a distance of about 40 miles from the camp. He testified that he made two trips to the camp in December of 1925; that on the first trip he saw Martin there, and saw him deliver liquor to a young man, with whom the witness had come from Panama City; that on the second trip the witness himself purchased 24 quarts of liquor from Martin, and paid him $100 for it. Martin contradicted the testimony of Paul Parker, and testified that, while he had been at the camp on three occasions, he had never seen or sold any liquor there. He further testified that he lent $1,600 to Wentzell to pay for the land, thinking that it was being bought for the purpose of planting an orange grove, but did not claim that he had taken any security for the loan, or that any orange trees were planted.
The trial court did not err in refusing to direct a verdict in favor of either Martin or Wentzell. It was for the jury to determine whether Martin's money was advanced to Wentzell for the purpose of putting out an orange grove, or as his contribution to the conspiracy. The uncontradicted testimony is that Wentzell admitted ownership of the boat and the liquor. The only ground on which he claims that he was entitled to acquittal is that the evidence only showed unlawful possession, and was insufficient to prove a conspiracy. To say the least, it is a fair inference that the importation, transportation, and sale of the liquor were in pursuance of a prearranged plan, and required the activities of more than one person. What has been said disposes of Wentzell's objection to the sheriff's testimony. That testimony was admissible against Martin, because it related to a statement made by a co-conspirator during the existence of the conspiracy.
Martin has also filed a petition to this court for permission to apply to the District Court for a new trial on the ground that the witness Paul Parker, since...
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