Silk v. United States

• Decision Date: 01 December 1926
• Docket Number: No. 7359,7360.,7359
• Parties: SILK v. UNITED STATES. MEEK v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

16 F.2d 568 (1926)

SILK v. UNITED STATES.

MEEK v. SAME.

Nos. 7359, 7360.

Circuit Court of Appeals, Eighth Circuit.

December 1, 1926.

James H. Hanley, of Omaha, Neb. (R. B. Schuyler and Thomas J. O'Brien, both of Omaha, Neb., on the brief), for plaintiffs in error.

George A. Keyser, Asst. U. S. Atty., of Omaha, Neb. (James C. Kinsler, U. S. Atty., and Ambrose C. Epperson and Andrew C. Scott, Asst. U. S. Attys., all of Omaha, Neb., on the brief), for the United States.

Before VAN VALKENBURGH and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

PHILLIPS, District Judge.

An indictment containing seven counts was returned in the District Court for the District of Nebraska against James J. Silk and Louis Meek. The first count charged a conspiracy to violate the National Prohibition Act (Comp. St. § 10138¼ et seq.). The second count charged an unlawful transportation of intoxicating liquor on April 13, 1925, the third an unlawful sale of intoxicating liquor on April 13, 1925, the fourth an unlawful transportation of intoxicating liquor on April 20, 1925, the fifth an unlawful sale of intoxicating liquor on April 20, 1925, the sixth an unlawful transportation of intoxicating liquor on April 27, 1925, and the seventh an unlawful sale of intoxicating liquor on April 27, 1925, contrary to the provisions of the National Prohibition Act. They were tried jointly. Meek was found guilty upon the first, second, third, fourth, and sixth counts, and not guilty upon the fifth and seventh counts. Silk was found guilty upon the first, fifth and seventh counts, and not guilty on the second, third, fourth, and sixth counts. The sentences imposed upon Meek were as follows: On count 1, six months' imprisonment and a fine of $500; count 2, a fine of $1; count 3, six months' imprisonment; count 4, a fine of $1; and count 6, a fine of $1. The sentences imposed upon Silk were as follows: Count 1, six months' imprisonment and a fine of $500; count 5, three months' imprisonment; count 7, six months' imprisonment. The sentences were to run concurrently.

Silk owned and operated a drug store at 1322 North Twenty-Fourth street, Omaha. S. D. Beazell and H. H. Bernard, prohibition agents, testified that they met Meek at the drug store on March 30, 1925, and stated to him that they wanted to purchase some grain alcohol; that Meek agreed to see if he could get some alcohol for them; that they returned to the drug store on April 1, 1925, and again met Meek, who introduced them to Silk; that thereafter Silk and Meek made three sales of alcohol to them; that on April 13, 1925, Meek delivered the first purchase, five gallons of alcohol, to them at their apartment at 667 South Twenty-Sixth avenue, Omaha; that on April 20, 1925, Silk and Meek delivered the second purchase, five gallons of alcohol, to them at their apartment; and that on April 27, 1925, Silk and Meek delivered the third purchase, five gallons of alcohol, to them at their apartment.

Meek testified that he met Beazell and Bernard on March 30, 1925; that, while he was talking to them, Silk drove up; that he introduced Silk to Bernard and Beazell at Bernard's request; that Silk then went into the drug store; that Bernard had been a friend of his family for 20 years; that they talked about Meek's brother-in-law and his child at Kansas City; that Bernard said he wanted to get some alcohol; that he advised Bernard he was not in that business; that Bernard stated he had been in the bootlegging business in Kansas City, and had just lost a carload of alcohol through seizure by prohibition officers, that he had to leave Kansas City, that he was short of money, and that he had to get some business in Omaha.

Meek further testified as follows:

"I met them out there on Twenty-Fourth street. * * * He said, `I can't get set right in Omaha, and you will have to get me some alcohol;' and I says, `That is out of my line,' and he told me about taking Tom Arnett into the Mason's lodge, and he showed me his credentials as being a Mason, and he says, `Lou, you know I would never do nothing wrong to you, and I have got to have some help until I get acquainted;' so he said, `If you will get me some alcohol, I will pay you for your trouble;' and I studied the thing over, and I said, `If I was to get that for you, it would not be for the money; it would be for the friendship of the family;' and I said, `I don't know whether I can get any or not.' So he says, `Well, see what you can do.' So he left."

"The first time he was out, he said he was stopping at the Hotel Conant, and the third time he came out he said, `I have rented an apartment;' and he said, `I am all set right ready to go;' but he says, `I can't get the stuff;' and he says, `You will have to assist me in getting it.' So he called me at my house, and left a phone call for me; so I called him up, and he asked me if I had located anything, and I told him I had not. So the next day he came out — pretty sure it was the next day; it wasn't over a day or two — he came out here and says, `Well, I have got to have some stuff now; can't you find any?' And I had seen a colored fellow by the name of Nigger Charley, and he said he has some alcohol; so Bernard asked me how much it would be, and I told him I didn't know the price of alcohol in Omaha, and he says — I said, `You are in the business, and you should know the price.' He said, `Well, Kansas City had three prices; eight, ten, and twelve;' and he says, `I always use the best;' and he says, `Here is sixty dollars and you get me five gallons.' I took the sixty dollars and I paid the sixty dollars for those five. They told me it was in one-gallon cans, but I never unpacked them or a thing. I delivered them just as they brought them to me."

Meek further testified that Bernard again came to see him and said: "Lou, I can't get fixed out here; they are afraid of me, * * * you will have to get me five more;" that he said to Bernard, "Why, you should be all right now by this time, if you are in the game;" and Bernard replied, "I will tell you, if you will get me five gallons, I will never ask you to get any more;" that Bernard then gave him $60, and he obtained five more gallons of alcohol and delivered it to the apartment.

Meek denied the sale and delivery of the third five gallons of alcohol. Meek's testimony was corroborated in certain particulars by the testimony of the prohibition agents. Silk denied the testimony of Bernard and Beazell with reference to him, except that he admitted meeting them and being introduced to them by Meek.

In rebuttal, Robert P. Samardick, chief of the prohibition field forces for the state of Nebraska, testified that the drug store had the reputation of being a "bootlegging joint," and Silk the reputation of being a "bootlegger," and that he had received a great many complaints against Silk on that account. Each defendant requested a charge upon entrapment. These requests were refused. The court, in his general charge to the jury, among other things, said:

"Much has been said, and much complaint and argument and discussion have been heard, about the...