Shively v. United States

• Decision Date: 27 June 1924
• Docket Number: 4186.
• Citation: 299 F. 710
• Parties: SHIVELY v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

299 F. 710

SHIVELY v. UNITED STATES.

No. 4186.

United States Court of Appeals, Ninth Circuit.

June 27, 1924

Rehearing Denied August 4, 1924.

G. F Vanderveer, of Seattle, Wash., for plaintiff in error.

Thomas P. Revelle, U.S. Atty., and J. W. Hoar, Sp. Asst. U.S. Atty both of Seattle, Wash.

Before GILBERT, ROSS, and RUDKIN, Circuit Judges.

ROSS Circuit Judge.

The plaintiff in error and one Clark were by indictment charged in two counts with certain designated violations of the National Prohibition Act (Comp. St. Ann. Supp. 1923, Sec 10138 1/4 [299 F. 711] et seq.), pursuant to a conspiracy alleged to have been entered into by and between them and certain other parties not to the grand jury known.

The first count alleged in substance that, after the formation of such conspiracy, Clark and Shively, from November 7, 1922, to the time of the presentment of the indictment, maintained certain rooms in the city of Seattle, within the jurisdiction of the court below, to wit, apartments 208 and 106 of the Jackson Apartments; that in pursuance of the alleged conspiracy both of the named conspirators on the 18th day of December, 1922, in said apartment 208, willfully and unlawfully possessed and sold certain described intoxicating liquor prohibited by the Act of Congress, and on the 21st day of the same month, in the same place, willfully and unlawfully possessed and sold certain other specifically described intoxicating liquor prohibited by law, and on the 15th day of January, 1923, in the same place, willfully and unlawfully possessed and sold certain other specifically described intoxicating liquor, and on the 5th day of February, 1923, in the same place, willfully and unlawfully possessed and sold certain other specifically described intoxicating liquor in violation of the statute mentioned and on the 19th day of February, 1923, in the same place, willfully and unlawfully possessed and sold certain other specifically described intoxicating liquor in violation of the statute mentioned, and on the 22d day of February, 1923, in the same place, willfully and unlawfully possessed and sold certain other specifically described intoxicating liquor contrary to the statute mentioned, and on the 22d day of February, 1923, willfully and unlawfully possessed and sold certain other specifically described liquors, 'containing more than one-half of 1 per centum of alcohol by volume and then and there fit for use for beverage purposes, such possession by the said conspirators as aforesaid being then and there for the purpose of violating the National Prohibition Act, by selling, bartering, exchanging, giving away, furnishing, and otherwise disposing of said intoxicating liquors, and such possession of said intoxicating liquor being then and there unlawful and prohibited by the National Prohibition Act. ' By count 2 the named conspirators were alleged to have maintained in the said mentioned apartments a 'common nuisance, by then and there manufacturing, keeping, selling, and bartering intoxicating liquor, to wit, whisky, gin, rum, brandy, distilled spirits, beer, and other intoxicating liquors containing more than one half of 1 per centum of alcohol by volume and fit for use for beverage purposes.'

The plaintiff in error pleaded not guilty to the indictment, and as to him a trial was had, resulting in his conviction upon each count. The law is, as expressly declared by the Supreme Court in American Fur Company v. United States, 27 U.S. (2 Pet.) 358, 7 L.Ed. 450:

'That where two or more persons are associated together for the same illegal purpose, any act or declaration of one of the parties, in reference to the common object, and forming a part of the res gestae, may be given in evidence against the other.'

The first specification of error relied upon by the plaintiff in error is, in effect, that the trial court erred in permitting the witness Whitney to testify, over objection thereto, that, on December 18, 1922, in apartment 208 of the Jackson Apartments, in the absence of Shively, Clark had said to him, in answer to the witness's interrogation, 'Yes, that is my partner out there; he is a little bashful, perhaps, he don't want to come in;' and in permitting the same witness to testify, over like objection, that, on February 5, 1923, in the same apartment, in the absence of Shively, Clark had told the witness that 'Shively was out, and had just brought in a load of 20 cases of liquor.'

That there was testimony tending to show that the alleged conspiracy existed, and that the testimony so objected to related to occurrences during its existence and in furtherance of it, plainly appears in this excerpt from the testimony of the witness Whitney, Assistant Federal Prohibition Agent for the state of Washington: That on December 18th he visited apartment 208 of Jackson Apartments with Mrs. Whitney, was admitted by defendant Clark, from whom they purchased drinks of gin and Scotch whisky; that a number of other visitors had been at the apartment that evening, and were served in the dining room by Mr. Shively; and that Mr Clark referred to Mr. Shively as his partner, and also told of smuggling whisky from Canada; that on December 21st and February 5th, together with Mrs. Whitney, he again visited said apartment, on both occasions was admitted by the defendant Clark, from whom he purchased a number of drinks of gin, whisky, and one bottle of rum, defendant Shively being present in apartment on both...