Morrison v. United States

• Decision Date: 18 July 1934
• Docket Number: No. 7255.,7255.
• Citation: 71 F.2d 358
• Parties: MORRISON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

71 F.2d 358 (1934)

MORRISON et al. v. UNITED STATES.

No. 7255.

Circuit Court of Appeals, Fifth Circuit.

June 12, 1934.

Rehearing Denied July 18, 1934.

W. J. Gex, of Bay St. Louis, Miss., R. A. Wallace, of Gulfport, Miss., and James N. Brittingham, Jr., of New Orleans, La., for appellants.

William H. Norman, Asst. U. S. Atty., Rene A. Viosca, U. S. Atty., both of New Orleans, La., and Amos W. W. Woodcock, Sp. Asst. to Atty. Gen., for the United States.

Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.

BRYAN, Circuit Judge.

The indictment in this case charges a conspiracy unlawfully to import intoxicating liquor into the United States, to transport it therein, and to operate a radio station without obtaining the permit and license required by law. The four defendants who are appellants here were convicted as charged. Error is assigned on rulings of the trial court, sustaining a demurrer to a plea in abatement, upon objections to evidence offered by the prosecution, and denying their joint and several motions for the peremptory instruction. Appellants also seek, by suggesting a diminution of the record, to bring here for review a purported instruction of the trial court to the effect that appellants might be convicted upon proof that they conspired only to violate the National Prohibition Act. It appears from their motion for certiorari that the trial judge approved the instruction in question as being one which he had given at the trial, but that he did so long after the expiration of the time allowed by law for settling and signing a bill of exceptions.

The plea in abatement alleges that the indictment was found by a grand jury whose members were all residents of the city of New Orleans, but it fails to allege how appellants were prejudiced or even that they were. Clearly, there was no error in sustaining a demurrer to such a plea. Agnew v. United States, 165 U. S. 36, 45, 17 S. Ct. 235, 41 L. Ed. 624; Hyde v. United States, 225 U. S. 347, 374, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614.

Appellants offered no evidence. Their objections to that in behalf of the government relate to its weight rather than to its admissibility or relevancy. All the evidence admitted, though much of it was circumstantial, tended logically to establish the offense alleged; none of it was objectionable as being too remote. According to the government's evidence, intoxicating liquor in wholesale quantities was purchased in Canada and British Honduras, smuggled into the United States by boat, and then shipped inland by rail. An unlicensed amateur radio station was installed at New Orleans by means of which orders were communicated to Belize, British Honduras, for the shipment of liquor, and directions given to boats at sea,...