Terry v. United States

• Decision Date: 03 August 1925
• Docket Number: No. 4433.,4433.
• Citation: 7 F.2d 28
• Parties: TERRY v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

7 F.2d 28 (1925)

TERRY v. UNITED STATES.

No. 4433.

Circuit Court of Appeals, Ninth Circuit.

August 3, 1925.

Wilford H. Tully, of San Francisco, Cal., for plaintiff in error.

Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

RUDKIN, Circuit Judge.

On or about June 19, 1922, a number of prohibition agents gained information from some source that a large quantity of inxtoxicating liquors was about to be landed at Allen's Wharf, in Monterey county, and that the liquors so landed would be removed from the wharf by automobiles. The agents concealed themselves in the vicinity of the wharf until the automobiles, to the number of a dozen or 15, appeared upon the scene to remove the liquor, and while the occupants of the automobiles were thus engaged they were apprehended by the agents, and the liquors, together with the automobiles, were seized. Such is the brief story told by the record, yet the indictment covers 38 pages of the printed transcript, and is said to contain upwards of 8,000 words.

The indictment charges that the defendants, to the number of 16, did, at or near Allen's Wharf, in the county of Monterey, on or about the 1st day of November, 1921, the real and exact date being to the grand jurors unknown, conspire and confederate together to commit offenses against the United States in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.), to the number of 10, and sets forth a large number of overt acts to effect the object of the conspiracy. Upon the trial the case was submitted to the jury as to 9 of the defendants, and a verdict of guilty was returned as to 5, and not guilty as to 4. Terry, one of the defendants found guilty, has sued out a writ of error to review the judgment of conviction.

Upon the trial the court admitted testimony, over objection and exception, tending to prove that, about 6 weeks prior to the incident at Allen's Wharf, the plaintiff in error employed one Frohn to transport several barrels of intoxicating liquor from Bodega Bay to a ranch house in the vicinity of Petaluma; that at or about the same time the defendant Zucker rented a barn from one Sousa in that vicinity, and that 9 barrels of intoxicating liquor were stored therein. There was no testimony of any kind, direct or circumstantial, tending to connect any of the other defendants with this prior incident or transaction. Upon the foregoing facts the court charged the jury as follows:

"It is not necessary that the government prove each and all of the overt acts charged in the indictment, nor even the specific act therein charged. Evidence was introduced here of another overt act, known as the Bodega Bay incident; that would be sufficient to sustain the charge as against at least the defendants whom you find concerned therein. It is sufficient if the jury are satisfied that a conspiracy was entered into for the purpose charged, and that some one or more of the parties did some one of the acts charged for the purpose of carrying it into effect."

Again:

"In arriving at your verdict as to whether or not there was a conspiracy, and, if so, which, if any, of the defendants were parties to it, you are not confined to evidence of a common design to land, transport, sell, or possess the liquor at Allen's Wharf, but you may consider whether or not any of these parties conspired to land, transport, sell, or possess liquor generally, or at any other place. The landing and attempted sale, transportation, or possession at Allen's Wharf, if you believe there was such attempted sale, transportation, or possession, was but the overt act as previously defined to you. * * * There is testimony that the defendant Terry employed the witness Lawrence Frohn, brother of defendant Edison Frohn, to transport liquor to and from a farm near Petaluma. Then there is evidence that the defendant Zucker rented a barn near Petaluma, and that barrels of whisky were stored in this barn, and transported from there in demijohns. This evidence, if it is believed by you to be true, and you believe this was the same farm, is evidence of a common design to transport and posses liquor as to the defendants Terry and Zucker."

These instructions were duly excepted to. The plaintiff in error contends that the charge in the indictment is limited to a conspiracy entered into at or near Allen's Wharf, in the county of Monterey, and does not extend to or include the prior incident at Bodega Bay. Ordinarily a charge of conspiracy is not circumscribed or limited by averments as to the time when or the...