Pinkerton v. United States, 11006.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation145 F.2d 252
Docket NumberNo. 11006.,11006.
PartiesPINKERTON et al. v. UNITED STATES.
Decision Date10 November 1944

J. M. Pennington, of Jasper, Ala., for appellants.

Jim C. Smith, U. S. Atty., of Birmingham, Ala., for appellee.

Before SIBLEY, McCORD, and LEE, Circuit Judges.

McCORD, Circuit Judge.

W. Daniel Pinkerton and Walter G. Pinkerton were indicted with three others on a conspiracy charge to violate Sections 2810, 2833, 2834, 2803, and 3253 of the Internal Revenue Code of the United States, 26 U.S.C.A.Int.Rev.Code §§ 2810, 2833, 2834, 2803, 3253; 18 U.S.C.A. § 88.

The indictment contained only one count, and charged that the conspiracy set forth had existed continuously from the 12th day of August, 1938, until the 27th day of June, 1943, and within three years of the finding of the indictment which was returned by the grand jury on February 19, 1944. There were nineteen overt acts charged in the indictment, the first six of which, it is without dispute, were committed more than three years before the return of the indictment.

The two Pinkertons were convicted and have appealed.

The evidence, as disclosed by the record, shows that the two Pinkertons are brothers and reside about two hundred yards from each other on a farm a few miles from the town of Fayette, Alabama; that for a number of years they had been engaged in the business of selling whiskey and had been arrested and convicted many times for violating the liquor laws; that Walter Pinkerton denied non-tax paid liquor had been found on his premises and contended that liquors found within the curtilage of his home were on the property of another, the land line running near his house; there was an inhibition against selling spirituous liquors in the county of Fayette, in which the Pinkertons lived, and they had both been convicted in the county courts for violating the liquor laws several times; that W. Daniel Pinkerton had secured internal revenue license to sell liquors each year for several years; that they not only bought and sold tax paid liquors, but the evidence further disclosed that they had sold non-tax paid liquors and also grain alcohol; that their homes and adjacent premises had been searched many times by officers and that on several occasions they had found non-tax paid whiskey either on the premises or within the curtilage of their homes; that W. Daniel Pinkerton had signed bonds for his brother from time to time when he had been arrested for violating the liquor law. The two Pinkertons when testifying admitted they had been arrested and convicted and had paid fines and served at hard labor for violating the liquor law, but each strenuously denied they had entered into a conspiracy with each other or with either of the three others jointly indicted with them to violate the liquor laws or any law, and that they had not directly or indirectly conspired with any one to violate any law.

Objection was made to the introduction of a supplemental transcript of the record which consisted of the requested and refused charges of the defendants, and which was not delivered to the court until after the time in which to submit the transcript. It has, however, reached the court within time to be submitted and heard on the day on which the case was set for trial, and counsel for the Government received a copy in time to fully answer the same. Moreover, it contains a correct transcript of the requested and refused charges. We have made this supplemental transcript a part of the record. 18 U.S.C.A. following section 688, Rule 4. Mortensen v. United States, 322 U.S. 369, 64 S.Ct. 1037; Ray v. United States, 301 U. S. 158, 57 S.Ct. 700, 81 L.Ed. 976; Forte v. United States, 302 U.S. 220, 58 S.Ct. 180, 82 L.Ed. 209; Kay v. United States, 303 U.S. 1, 58 S.Ct. 468, 82 L.Ed. 607; Miller v. United States, 317 U. S. 192, 63 S.Ct. 187, 87 L.Ed. 179.

The indictment was in all respects free from error. The court, however, failed to correctly define the charge of conspiracy as laid in the indictment and to point out to the jury what evidence was necessary to keep the conspiracy alive and bring it within the statute of limitations, and also to limit the evidence as to the overt acts committed before the three year statute ran. The charge was further confusing, we think, for failure to fully instruct the jury that the guilt of the defendants could only be predicated on one or more overt acts proved to have been committed within the three year limit of the statute....

To continue reading

Request your trial
25 cases
  • United States v. Schneiderman
    • United States
    • U.S. District Court — Southern District of California
    • 19 d2 Agosto d2 1952
    ...offense must be found "within three years next after such offense shall have been committed." 18 U.S.C. § 3282; Pinkerton v. United States, 5 Cir., 1944, 145 F.2d 252, 254; Ware v. United States, 8 Cir., 1907, 154 F. 577, 12 L.R.A.,N.S., 1053, certiorari denied, 1907, 207 U.S. 588, 28 S.Ct.......
  • Marcusse v. U.S.
    • United States
    • U.S. District Court — Western District of Michigan
    • 30 d3 Março d3 2011
    ...on the date of the “last overt act in furtherance of the conspiracy alleged in the indictment.” Id. at 228; see also Pinkerton v. United States, 145 F.2d 252 (5th Cir.1944). The record clearly shows that in 2001 and into 2002, Movant was committing overt acts to further the crimes outlined ......
  • Besser v. United States
    • United States
    • U.S. District Court — Western District of Michigan
    • 25 d5 Janeiro d5 2013
    ...on the date of the "last overt act in furtherance of the conspiracy alleged in the indictment." Id. at 228; see also Pinkerton v. United States, 145 F.2d 252 (5th Cir. 1944)). The record clearly shows that in 2001 and into 2002, the conspirators were committing overt acts to further the cri......
  • Pinkerton v. United States
    • United States
    • U.S. Supreme Court
    • 10 d1 Junho d1 1946
    ...after petitioners had been convicted and had been successful in securing reversal on appeal for errors in the charge. Pinkerton v. United States, 5 Cir., 145 F.2d 252. Following this reversal they were reindicted and tried in the present case. The Government now says, as to the plea of doub......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT