Tingle v. United States, 8699.

• Decision Date: 20 January 1930
• Docket Number: No. 8699.,8699.
• Citation: 38 F.2d 573
• Parties: TINGLE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

38 F.2d 573 (1930)

TINGLE v. UNITED STATES.

No. 8699.

Circuit Court of Appeals, Eighth Circuit.

January 20, 1930.

Forest W. Hanna, of Kansas City, Mo. (C. C. Madison and Hanna & Hurwitz, all of Kansas City, Mo., on the brief), for appellant.

Harry L. Thomas, Asst. U. S. Atty., of Kansas City, Mo. (William L. Vandeventer, U. S. Atty., of Kansas City, Mo., on the brief), for the United States.

Before VAN VALKENBURGH and GARDNER, Circuit Judges, and MUNGER, District Judge.

VAN VALKENBURGH, Circuit Judge.

Appellant was an oil jobber with his place of business at 2932 Fairmount avenue in Kansas City, Mo. January 1, 1926, he took a ten-year lease upon a large warehouse at that location. The building is two stories in height, and covers about 22,500 square feet. Appellant used it for the storage of oils handled in his jobbing business, and also sublet some space. June 22, 1927, prohibition officers raided the place and found in a long narrow room, on the south side of the first floor of the warehouse, five steel vats with a capacity of 1,250 gallons, two of which were partially full of beer containing 5.8 per cent. of alcohol by volume. In addition to this were found a number of kegs, some containing beer, others empty; two tall steel carbonating tanks, each with a capacity of 1,250 gallons, together with all the customary paraphernalia of a fully equipped brewery. The room in question was eighteen feet by forty feet in size and was entered only through the warehouse. The officers found its door fastened, and entered by breaking the lock. The brewery was not in operation and no one was found in charge. In a small room adjoining the brewery proper, on the west, was a desk and chair.

A buzzer connected this room with the brewery. Appellant's office was on the second floor. He was not present when the officers entered. At the warehouse they found two employees of appellant, — a man named Elmer Hoard, and a woman who gave her name as Johnson. Upon learning the business of the officers Hoard admitted them to the warehouse, and the woman called appellant by telephone. On his arrival, Tingle produced a key to the brewery door, which, however, had theretofore been forced by the officers. The next day he made two signed statements in the presence of the Assistant United States Attorney, in which he stated that he had rented this space to a man introduced to him as Jack Williams by two other men named as Fritz Malloy and Bob Rippen. He was paid $600 per month for the use of this space, and was fully aware of the purpose for which it was to be used. In these statements he says he met Malloy and Rippen about a year before, at which time they unloaded a car of alcohol on his switch track. For this use of his track he had received $25. A little later he leased the track again for the same purpose. The statement names as other parties to the brewery enterprise, one Thomas Church, and one Edward Hohmann. Later an indictment was returned in the District Court for the Western District of Missouri, charging Bob Rippen, Frank (Fritz) Malloy, Joseph Tingle, Tom Fitzgibbons, alias Thomas Church, Edward Hohmann, Emma Amsler, alias Helen E. Johnson, Elmer Hoard, Earl Tingle, J. J. Fields, and Dewey Bardone with conspiring to manufacture, sell, barter, transport, deliver, furnish, and possess intoxicating liquor and property designed and intended for use in such manufacture. When the case was called, a severance was granted as to Hohmann, and the government entered a nolle as to Rippen and Malloy. None of the other defendants except Joseph L. Tingle had been arrested, and the case proceeded to trial as to appellant alone. The jury returned a verdict of guilty.

The errors assigned are:

1. The admission in evidence, over objection, of the written statements of appellant before the government had shown or offered to show by any testimony, outside of these statements or confessions themselves, any substantially corroborative evidence of the existence of the conspiracy charged.

2. The refusal of defendant's request for a directed verdict of not guilty based upon the same ground and made at the close of the government's case.

3. The refusal of the court to instruct that the written statements and declarations of the defendant, standing alone, were not sufficient to establish a conspiracy.

4. The admission in evidence of the statements tending to prove a violation of the National Prohibition Act other than the conspiracy charged.

5. Failure of the court to rebuke certain alleged prejudicial remarks made by the Assistant United States Attorney in his closing argument to the jury.

The first three assignments may be considered together. Mere irregularity in the order of proof is generally permissible within the sound discretion of the court, and will not constitute reversible error provided the record ultimately contains evidence which renders competent and material that which has thus been admitted out of order. But in conspiracy cases, the unlawful combination, confederacy, and agreement between two or more persons, that is, the conspiracy itself, is the gist of the action, and is the corpus delicti charged. It is, therefore, primarily essential to establish the existence of a confederation or agreement between two or more persons before a conviction for conspiracy to commit an offense against the United States can be sustained. This statement requires no citation of authorities. It is equally true that "extrajudicial confessions or admissions are not sufficient to authorize a conviction of crime, unless corroborated by independent evidence of the corpus delicti." Martin v. United States (C. C. A. 8) 264 F. 950. This has been the consistent holding of this court, in harmony with uniform decisions in other jurisdictions. Naftzger v. United States (C. C. A.) 200 F. 494; Goff v. United States (C. C. A.) 257 F. 294; Turinetti v. United States (C. C. A.) 2 F.(2d) 15. It is necessary, then, to determine whether there is in the record before us any...