Sugarman v. United States

• Decision Date: 04 November 1929
• Docket Number: No. 5915.,5915.
• Parties: SUGARMAN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

35 F.2d 663 (1929)

SUGARMAN et al. v. UNITED STATES.^*

No. 5915.

Circuit Court of Appeals, Ninth Circuit.

November 4, 1929.

Russell Graham, of Los Angeles, Cal., for appellant George Williams.

Samuel A. King, of Salt Lake City, Utah (E. P. Sample, of San Diego, Cal., and Alfred F. MacDonald, of Los Angeles, Cal., of counsel), for appellants Sugarman and Purdue.

Samuel W. McNabb, U. S. Atty., and William R. Gallagher, Asst. U. S. Atty., both of Los Angeles, Cal.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

RUDKIN, Circuit Judge.

This is an appeal from a judgment of conviction under three counts of an indictment. The first count charged a conspiracy to violate the National Prohibition Act (27 USCA) by possessing and transporting intoxicating liquor in certain counties in Southern California; the second count charged a conspiracy to violate the Tariff Act of 1922 (42 Stat. 858) by the unlawful importation of intoxicating liquor into the United States, and the third count charged the unlawful importation of liquor into the United States without inspection and without the payment of duty thereon. A separate brief was filed on behalf of the appellant Williams, but we will consider the several specifications of error without particular regard to the party or parties by whom the specification is made. The appellants challenge the sufficiency of the second count of the indictment and the sufficiency of the evidence to support the verdict, and also assign error in the admission of testimony, in the refusal of the court to strike certain testimony as against certain of the appellants, and in the refusal of certain requested instructions.

The overt acts charged in the first count of the indictment were made a part of the second count by reference only, and the sufficiency of the latter count is challenged because it contains no averment that the overt acts set forth in the first count were committed to effect the object of the conspiracy charged in the second count; nor do the overt acts themselves contain any such averment. The form of the pleading is not to be commended, and the count is of doubtful sufficiency; but the sentence of the court was general, running concurrently on all counts, and, if the first count is sufficient in law, and is supported by competent testimony, the legal sufficiency of the second count is of no consequence. It is further contended that the testimony is insufficient to support the charge of importation into the United States as alleged in the third count. The testimony is of doubtful sufficiency in that regard; but, whether sufficient or not, the question is immaterial, if, as already stated, the sentence finds adequate support in the first count.

There is little merit in the contention that the testimony does not support the verdict, as against the appellants Sugarman and Purdue. We might say in this connection that the indictment included in the charge a number of persons other than the appellants. As to some, a severance was granted; as to others, a verdict of not guilty was directed by the court; and as to still others a verdict of not guilty was returned by the jury. One of the principal actors in furtherance of the object of the conspiracy was one Morley, a former prohibition agent, as to whom, among others, a severance was granted. About the middle of November, 1927, Morley approached an officer of the coast guard, stating that he represented the Consolidated Liquor Importers, and that the people with whom he was connected were importing liquor into Orange and San Diego counties in the state of California. He further stated that they...