Perry v. United States

• Decision Date: 30 March 1927
• Docket Number: No. 7523.,7523.
• Citation: 18 F.2d 477
• Parties: PERRY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

18 F.2d 477 (1927)

PERRY et al. v. UNITED STATES.

No. 7523.

Circuit Court of Appeals, Eighth Circuit.

March 30, 1927.

C. S. Walden, of Kansas City, Mo., and Hugh Dabbs, of Joplin, Mo. (W. C. Peters, of Tulsa, Okl., and Walden & Andrews and Norman A. Cox, all of Joplin, Mo., on the brief), for plaintiffs in error.

John M. Goldsberry, U. S. Atty., of Tulsa, Okl. (W. B. Blair, Asst. U. S. Atty., of Tulsa, Okl., on the brief), for the United States.

Before STONE and VAN VALKENBURGH, Circuit Judges, and TRIEBER, District Judge.

VAN VALKENBURGH, Circuit Judge.

At the January Term, 1926, of the District Court of the United States for the Northern District of Oklahoma at Tulsa, an indictment containing four counts was returned against plaintiffs in error and two others, to wit, one Jim Ray and one N. H. Wightman, alias Charles Wortham. The first count charged a conspiracy to have and possess certain intoxicating liquors in a certain three-story frame building with basement, located about one-fourth mile south of a certain toll bridge on the Cowskin river, situated on what was known as the E. N. Perry ranch, located about eight miles northeast of the town of Grove in Delaware county, Okl.; a further object of said conspiracy was the manufacture of intoxicating liquor at the same place, and to have and possess property and material for such manufacture. The second count was for the substantive offense of unlawful possession of whisky, gin, and alcohol on the same premises; said location having been within the limits of the Indian Territory and a part thereof prior to the admission of the state of Oklahoma into the Union, and being a place where the possession of spirituous and intoxicating liquors was then and there prohibited by federal statutes. The third count charged the unlawful manufacture of intoxicating liquor, to wit, 300 gallons of whisky, gin, and alcohol on the same premises. The fourth count charged the unlawful possession of property and material designed and intended for, and adapted to, the manufacture of intoxicating liquor; this count, however, was withdrawn from the consideration of the jury and requires no further attention. The defendants Ray and Wortham not being in custody, the trial proceeded against their codefendants Perry, McCullough, Thomblinson, and Thomas. The jury returned a verdict of guilty against all four defendants on all three counts. Perry and McCullough were each sentenced to two years' imprisonment in the penitentiary and a fine of $5,000 on the first count, to two years' like imprisonment and a fine of $300 on the second count, and to pay a fine of $100 on the third count; the terms of imprisonment to run concurrently. Thomas and Thomblinson received a sentence of imprisonment for a year and a day in the penitentiary and a fine of $300 on the first count, the same imprisonment and a fine of $100 on the second count, and a fine of $50 on the third count; the terms of imprisonment likewise to run concurrently.

The defendant Perry had owned this farm or ranch, hereinabove described, and consisting of 175½ acres, for about ten years. In the vicinity, on the Cowskin river, he had two other farms, one containing 326 acres and the other 131 acres; upon the premises was an old mill building containing four stories, or three stories and basement. Upon the farm in question, Perry, in years past, had erected a seven-room house which he used as a country place, and which he visited for short periods from time to time for diversion and rest. In this house a Mrs. Nichols, who had occupied a like position in the Perry family for some years, was installed as housekeeper and caretaker. One of her two daughters married the defendant Thomas; the other, now deceased, became the wife of the defendant Thomblinson. Mr. Perry had considerable stock upon this farm, and Thomas, who with his wife lived at the ranch house above described, worked the farm for Mr. Perry on a profit-sharing basis.

Some time in June, 1925, Perry was approached by the defendant Wortham, who desired to lease a few acres of the farm, including the old mill, and to erect on the premises a small building for a general store. He stated that he desired to use the old building as a grist mill. Perry finally consented, and an instrument, dated July 1, 1925, was executed, whereby Perry leased to Wortham 10 acres of the farm, including the four-story building, to be used for mill purposes, for a term of three years, with the privilege of renewal or purchase. The rent reserved was $25 per month, and it was provided that $30 per month additional should be paid for the use of a tractor steam engine and a sawmill, which appears to have been located upon the premises either in conjunction with the mill building or otherwise. A small store building was erected pursuant to understanding, a general stock of goods placed therein, and Mrs. Thomas was placed in charge. Some time in September information came to the marshal of the United States for the said Northern District of Oklahoma that the premises rented to Wortham were being used for the manufacture and sale of intoxicants, a search warrant was procured, and on or about the 18th day of September, 1925, the premises were raided. The search that followed disclosed that on the first floor of the building above the basement there was a gristmill with requisite machinery. On the second floor three large stills were found in operation and also several hundred gallons of whisky; there was also found a filtering plant, mash and vats, and, in general, full equipment for the distillation of liquor. Outside the building was located a boiler and engine which form the motive power of the gristmill and also operate the steam pipe to the stills on the second floor; there was also a pump that forced the water from a spring on the premises to water tanks in the attic of the building. Waste from the operation of the stills was carried by means of a pipe to and through a hogpen situated some little distance from the building.

Of the defendants charged only Thomas was found upon the premises at the time of the raid; he had been running the engine and boiler just previously to the arrival of the officers and was eating his luncheon when they appeared. Wortham was never found. Ray and Thomblinson were in Joplin. Shortly after their arrival there, Ray informed Thomblinson of the raid and told him he had better stay away and avoid arrest. Ray then disappeared. Some one from the vicinity of the farm telephoned Perry in Joplin that a liquor plant had been found in the old mill. Unable to make personal investigation because of the illness of his wife, Perry asked McCullough, who was about to leave for Tulsa, to stop at the farm on his way and advise him (Perry) of the situation. The result was that McCullough reached the farm...