Minner v. United States

• Decision Date: 29 March 1932
• Docket Number: No. 552.,552.
• Citation: 57 F.2d 506
• Parties: MINNER v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

57 F.2d 506 (1932)

MINNER v. UNITED STATES.

No. 552.

Circuit Court of Appeals, Tenth Circuit.

March 29, 1932.

Thos. F. Doran and Harry W. Colmery, both of Topeka, Kan. (Doran, Kline, Colmery & Cosgrove, of Topeka, Kan., and Carl Van Riper, of Dodge City, Kan., on the brief), for appellant.

Dan. B. Cowie, Asst. U. S. Atty., of Topeka, Kan. (S. M. Brewster, U. S. Atty., of Topeka, Kan., on the brief), for the United States.

Before PHILLIPS and McDERMOTT, Circuit Judges, and KENNEDY, District Judge.

PHILLIPS, Circuit Judge.

Minner and certain other defendants were charged by indictment with conspiracy to violate the National Prohibition Act. (See note 1.)

At the first trial, Gorges, Nelson, Norton, and fourteen other defendants were convicted, and the jury disagreed as to Minner and five other defendants. A severance was granted to certain defendants. Minner was then tried alone, convicted, and sentenced to imprisonment for two years and to pay a fine of $10,000. He has appealed.

The testimony on the part of the government tended to establish the following facts: Madden was assistant prohibition administrator for the state of Kansas. Norton saw Minner in November, 1929, at the latter's office in Dodge City, Kansas, and stated he knew a man who was willing to pay Madden $2,000 a month for protection. Norton was acting for Gorges. Shortly thereafter Madden came to Minner's office and Minner told Madden that a man had been in his office who wanted to operate some stills in Reno and Sedgwick counties, and that the man thought Madden was a dangerous man and was willing to pay him $2,000 a month. Madden asked him if the full amount was for them and Minner said it was. Madden reported the conversation to Col. George H. Wark, his superior. Further conferences took place between Minner and Norton, and Minner and Madden. Arrangements were finally made for a meeting between Minner, Gorges, and Madden to be held at Minner's office on February 14, 1930. Madden and Gorges were in different rooms and did not see each other. Negotiations were carried on through Minner. Gorges made two proposals: One that Madden let him collect for stills in Reno and Sedgwick counties, and the other that Madden "tip" Gorges off when the prohibition authorities were to make raids in those counties, both of which Madden rejected. Madden proposed that if Gorges would advise him as to the locations of his stills, he would keep prohibition agents under him away from them. Gorges accepted this proposition and agreed to pay $1,200 to cover the period from that date to April 1, and $1,200 monthly thereafter until January 1, 1931. Two hundred dollars of such payments were to go to Minner and $1,000 to Madden. Gorges paid Minner $1,200, and the latter in turn gave $1,000 thereof to Madden. Gorges was not then operating and he advised Minner that it would take him about two weeks to secure still locations and to start operations. Gorges agreed to send Minner a list of such locations. This he did in the latter part of February, 1930. Gorges changed some of his still locations and on April 1 he gave Minner two lists. One gave the then locations of six stills belonging to Gorges. The other the locations of four places which Gorges wanted the officers to raid. Minner turned these lists over to Madden. Three payments of $1,200 each were made by Gorges to Minner at the latter's office on February 14, April 1, and May 1. Minner retained $200 out of each of such payments and gave the remainder to Madden, who in turn gave such amounts to Wark. Max Mollenger had a one-third interest with Gorges in one of the stills and contributed a portion of the money paid to Minner. Gorges and certain of his associates were engaged in the manufacture, transportation, and sale of intoxicating liquor in Sedgwick county from about March 1 to about May 12, 1930.

Nelson testified that he introduced Norton to Minner at the latter's office in 1928.

Norton testified to the following: He first met Minner at the latter's office at Dodge City in August, 1928. Minner was then county attorney of Ford county, Kansas. After some conversation he agreed to pay Minner $200 a month for two months, and Minner agreed to afford him protection from prosecution for operating a still in Ford county. He operated a still on the Arbaugh farm northeast of Dodge City for two months and paid Minner the agreed amount.

Clark Arbaugh testified that in the summer of 1928 he rented a farm northeast of Dodge City to Norton for two months for $50.00

The above testimony was introduced over the objection of counsel for Minner that it was long prior to the conspiracy charged and tended to establish an offense separate and distinct from the offense here charged.

As a part of the cross-examination of Madden, counsel for Minner sought to identify and introduce certain correspondence that passed between Minner and Madden from December 10, 1928, to September 12, 1929, tending to show that Minner was cooperating with the federal officers in the enforcement of the Prohibition Law in Ford county. Counsel also sought to show that Minner furnished an automobile to two agents working under Madden and that it was used by them to investigate certain violations Minner had reported. On objection of the government, this evidence was rejected.

Over objection of counsel for Minner that it was hearsay and not binding on Minner, Gorges was permitted to testify to certain conversations between him and Norton after September 1, 1929, and prior to February 15, 1930, to the effect that Norton had told Gorges that Minner had stated to Norton: "That he thought he could get some Federal help;" "That he thought he could get to Johnnie Madden;" "That he thought he could fix it up;" "That he had told * * * Madden about the deal and that Madden wanted to think it over and would let him know later;" "That he was ready to go;" and "That he was ready to do business."

Brice F. Armstrong, a prohibition agent working under Madden, testified to the following: Norton told Armstrong that Nelson had tuberculosis; that the United States marshal had a warrant for Nelson and was trying to apprehend him; and that he wanted to pay $250 to stop the warrant and to permit Nelson to operate at Dodge City until after harvest and then go to Arizona for his health. Armstrong and Norton went to Dodge City on May 1. On the way Norton pointed out a farm and said that for two months he had operated a still there and had paid Minner for protection. While at Dodge City Norton paid him $250 to obtain a dismissal of the Nelson case.

Minner testified to the following: He was county attorney of Ford county, Kansas, from 1924 to June 19, 1930. During that time he prosecuted approximately 160 liquor cases and obtained 158 convictions. He denied the transaction with Norton in August, 1928. From the spring of 1928 to May, 1930, Madden frequently consulted with him concerning liquor violations. Minner on several occasions furnished Madden with information on which he brought prosecutions and procured convictions. In the fall of 1929 he furnished a car to Madden's agents to be used in Ford and Finney counties. He identified certain correspondence had between him and Madden in November and December, 1929, which indicated that he was cooperating at that time with Madden in the enforcement of the Prohibition Law. He first met Norton in the fall of 1929. After some preliminary conversation, Norton said that he had a friend engaged in the liquor business who was trying to find someone who could deal with Madden. Minner told Norton he did not care to discuss such a matter with him. Norton said, "This man can pay plenty; he can pay enough to scare him; he can pay $2,000 a month." Minner told Norton he was not interested and asked him to leave. Minner reported this conversation to Madden. About December 20, 1929, Madden came to Minner's office and requested him to find out from Norton the name of the man Norton had talked about. Minner ascertained that Norton was in Old Mexico and so reported to Madden. Madden instructed Minner to see Norton when the latter returned and, if necessary, tell him Madden was interested in the proposition. About February 5, 1930, Madden again inquired of Minner if he had seen Norton and then said, "If he does come back and you can get in touch with him, you telephone me at Topeka and I will be out."

He testified in detail to later transactions had between Gorges, Madden, and him, and to the effect that he thereafter acted at the request and under the direction of Madden in an effort in good faith to aid the latter to get a list of Gorges's still locations and evidence of bribery against Gorges. In many particulars he was corroborated by Madden's testimony.

He further testified to the following: On February 14, 1930, Gorges asked Minner what arrangements he had made with Madden for himself. Minner said he had not made any and asked what was customary. Gorges said, "Well, it is customary for the go-between to get 20 per cent." Minner reported such conversation to Madden. The payments made by Gorges were $1,000 and not $1,200, and Minner turned the full amount thereof over to Madden on each occasion. On May 1, 1930, Minner asked Madden why he had not raided the Gorges stills and Madden said they were waiting to locate the Thomas alcohol stripping plant.

He denied that he told Madden on February 15 that Gorges had paid him $200.

Counsel for Minner contend that the indictment charges a general conspiracy entered into near the city of Wichita between fifty alleged conspirators, in which Minner was to act as the representative of Gorges and the other conspirators to purchase protection from Madden for all of them; that overt acts one and two allege payments by Minner to Madden to purchase protection for Gorges alone; that overt act three alleges a payment by Minner to Madden to purchase protection for Gorges and Geselle only; that these overt acts...