Schnautz v. United States

• Decision Date: 03 April 1959
• Docket Number: No. 17102.,17102.
• Citation: 263 F.2d 525
• Parties: Henry Travis SCHNAUTZ, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

263 F.2d 525 (1959)

Henry Travis SCHNAUTZ, Appellant, v. UNITED STATES of America, Appellee.

No. 17102.

United States Court of Appeals Fifth Circuit.

February 18, 1959.

Rehearing Denied April 3, 1959.

John D. Cofer, G. Hume Cofer, Douglass D. Hearne, Austin, for appellant.

Arthur L. Luethcke, John R. Locke, Jr., Asst. U. S. Attys., Russell B. Wine, U. S. Atty., San Antonio, Tex., for appellee.

Before TUTTLE, JONES and WISDOM, Circuit Judges.

JONES, Circuit Judge.

An indictment in four counts was brought against the appellant. In the first count he was charged with acquiring marihuana without paying the transfer tax as required by 26 U.S.C.A. § 4741(a). The second count charged a transfer of marihuana without a written order on the prescribed form. Count three stated that the appellant received, concealed, sold and facilitated the transportation of marihuana after its importation into the United States. By count four the appellant and Ysidro C. Guerra, who was not a defendant, were charged with conspiring to commit the following offenses, (1) to acquire marihuana without paying the transfer tax, (2) to transfer marihuana without the written order required by the statute, and (3) to receive, conceal, sell and facilitate the transportation, concealment and sale of unlawfully imported marihuana. He was acquitted of the first three counts and convicted on the fourth count.

The appellant asks us to decide that the evidence was insufficient to sustain the conviction for conspiracy and that a verdict of acquittal should have been directed on his motion. Supporting this claim of error the appellant cites Lambert v. United States, 5 Cir., 1939, 101 F.2d 960, and says that it is controlling of this case. In the Lambert case the Court found that every fact and circumstance in the record pointed to the appellant in that case as being an aider and abettor of the purchaser and no fact or circumstance pointed to him as an aider and abettor of the sellers. Such is not the situation in the case before us. The statements¹ of the appellant to the Government agent point to him as being a participant in the sale on behalf of the seller. This specification of error cannot be upheld. Duke v. United States, 5 Cir., 1956, 233 F.2d 897; United States v. DeVasto, 2 Cir., 1931, 52 F.2d 26, 78 A.L.R. 336, certiorari denied 284 U.S. 678, 52 S.Ct. 138, 76 L.Ed. 573.

In the court's instructions was included the statement that a conspiracy "may be proven by overt acts". The appellant asserts that this is an incorrect statement of the law and that because of the error we must reverse the conviction. This is urged on the theory that the jury might consider the conspiracy proven if the evidence showed that any of the overt acts were committed. The gist of criminal conspiracy is the agreement between the conspirators to commit an offense attended by an act of one or more of the conspirators to effect the object of the conspiracy. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128; Rent v. United States, 5 Cir., 1954, 209 F.2d 893. Proof of the commission of an overt act might also be evidence of an agreement among conspirators depending on the nature of the act and the character of the proof. 15 C.J.S. Conspiracy § 92 d, p. 1145. The portion of the instructions which is the subject of the appellant's complaint is only a part of a sentence included in a quite lengthy charge which, so far as is pertinent here, is set forth in a note.² In the consideration of objections to an instruction of the court to the jury, a reviewing court will look to the whole charge and not to the specified part as standing alone and taken out of context. International Paper Co. v. Busby, 5 Cir., 1950, 182 F.2d 790; Carter v. Atlanta & St. A. B. Ry. Co., 5 Cir., 1948, 170 F.2d 719, reversed on other grounds 338 U.S. 430, 70 L.Ed. 226, 94 L.Ed. 236; Pasotex Pipe Line Co. v. Murray, 5 Cir., 1948, 168 F.2d 661. The particular language on which the appellant bases his assertion of error may not be, standing alone, an accurate statement of the law. When, however, it is considered in context and in the light of the entire charge we conclude that the clause complained of did not confuse the jury nor prejudice the appellant.

The fourth count of the indictment,³ which is the only one upon which the appellant was convicted, alleges that "commencing on or about February 1, 1957, and continuing to and through February 20, 1957", the appellant and another conspired to commit certain specified offenses, and that "Pursuant to said conspiracy, and to effect the objects thereof" certain overt acts were committed. Six overt acts were set forth and alleged to have been committed on February 2, 1957. In addition to the six overt acts specifically averred, the fourth count included with and as overt acts "the first three counts of this indictment." The first three counts charged the appellant with substantive offenses and stated that they were committed "on or about February 2, 1957." In a motion to dismiss the indictment the appellant urged that the indictment does not definitely allege when the conspiracy was entered into, and that the indictment charges that the overt acts were committed prior to the formation of the conspiracy. The purpose of an indictment is to so inform the accused of the offense with which he is charged as to permit him to make his defense and, if subsequently charged with the same offense, to permit him to plead double jeopardy. Duke v. United States, 5 Cir., 1956, 233 F.2d 897; 4 Wharton's Criminal Procedure 506, § 1724. If, in an indictment for conspiracy, there is any vagueness in the averment as to the time of its formation, the time may be fixed and made certain by a reference to the allegations of overt acts. Toliver v. United States, 9 Cir., 1955, 224 F.2d 742; Rubio v. United States, 9 Cir., 1927, 22 F.2d 766, certiorari denied 276 U.S. 619, 48 S.Ct. 213, 72 L.Ed. 734. The sufficiency of an indictment is to be tested by practical rather than technical considerations. Duke v. United States, supra. There was no error in the refusal of the district court to dismiss the indictment on the ground that the time when the conspiracy was formed was not alleged with sufficient particularity.

The appellant, as one of the grounds for his motion to dismiss the indictment, asserted that it was defective in that it did not expressly charge that the conspirators "unlawfully" entered into the conspiracy and did not charge that they "knowingly and wilfully" entered into the conspiracy. The refusal of the district court to dismiss the indictment on these grounds is claimed by the appellant as an error requiring reversal. The omission from the indictment of the words "unlawfully, knowingly and wilfully", did not mislead the appellant. A conspiracy to enter into illegal sales and transportation of marihuana could hardly be a lawful enterprise. The charge of conspiracy to violate a criminal law has implicit in it the elements of knowledge and intent. Williams v. United States, 5 Cir., 1953, 208 F.2d 447, certiorari denied 347 U.S. 928, 74 S.Ct. 531, 98 L.Ed. 1081; Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484; Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561; Razete v. United States, 6 Cir., 1952, 199 F.2d 44, certiorari denied 344 U.S. 904, 73 S.Ct. 284, 97 L.Ed. 698; Madsen v. United States, 10 Cir., 1947, 165 F.2d 507; Oliver v. United States, 10 Cir., 1941, 121 F.2d 245, certiorari denied 314 U.S. 666, 62 S.Ct. 124, 86 L.Ed. 533. The failure to charge in the indictment that the conspiracy was entered into "unlawfully, knowingly and wilfully" was not error.

The appellant asserts that error was committed by the trial court by its refusal to hold the indictment bad because it charged a conspiracy to commit three offenses. Each of these offenses was a felony. This being so, it is not necessary that there be a separate count as to the conspiracy to commit each of the substantive crimes. The rule would be otherwise if one of the substantive offenses which was the subject of the conspiracy had been a misdemeanor. Williams v. United States, 5 Cir., 1956, 238 F.2d 215, certiorari denied 352 U.S. 1024, 77 S.Ct. 589, 1 L.Ed.2d 596; Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23; Frohwerk v. United States, supra; Jones v. United States, 10 Cir., 1958, 251 F.2d 288, certiorari denied 356 U.S. 919, 78 S.Ct. 703, 2 L.Ed. 2d 715.

Finally, the appellant contends, as he unsuccessfully contended in the trial court, that the fourth count of the indictment is defective because of the absence of allegations of a conspiracy to commit specifically designated offenses. In considering this contention we should keep in mind the purposes that indictments are to serve, and the principle that the conspiracy itself is the gist of the crime. Here we do not find any lack of compliance with the requirement that the indictment shall be such as to permit the accused to prepare his defense. It is not necessary to allege with particularity the offenses which are the objects of the conspiracy or to state such...