United States v. Nelson

• Decision Date: 22 November 1950
• Docket Number: No. 10189.,10189.
• Parties: UNITED STATES v. NELSON.
• Court: U.S. Court of Appeals — Seventh Circuit

185 F.2d 758 (1950)

UNITED STATES v. NELSON.

No. 10189.

United States Court of Appeals, Seventh Circuit.

November 22, 1950.

Myer H. Gladstone, William J. McCormack, Chicago, Ill., for appellant.

Otto Kerner, Jr., U. S. Atty., Joseph E. Tobin, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.

DUFFY, Circuit Judge.

Defendant was convicted after a trial before the court without a jury of conspiring with four others to commit the offenses of stealing certain goods and chattels from an interstate shipment of freight, with intent to convert same to their own use, and of possessing such goods and chattels knowing them to have been stolen. Defendant was acquitted by the court on Count 2, which charged possession of such goods and chattels. Defendant here urges as error that the evidence does not support the charge of conspiracy, and that the existence of a conspiracy cannot be proved by evidence of an overt act.

To prove conspiracy, proof of an express conspiracy agreement is not necessary. Brayton v. United States, 74 F.2d 389. A conspiracy to commit an offense can rarely be proved by direct evidence. Hence it is not necessary that the participation of one charged with conspiracy should be shown by direct evidence. United States v. Randall, 7 Cir., 164 F.2d 284, 288. This court said in United States v. Holt, 108 F.2d 365, 368: "To sustain a charge of conspiracy, the Government need not furnish proof of the unlawful plan or agreement, but such charge may be sustained by evidence showing concert of action in the commission of the unlawful act, or by proof of other facts from which the natural inference arises that the unlawful acts were in furtherance of a common design of the alleged conspiracy. The crime is frequently established as a result of inferences drawn from the acts of the person accused which may be considered in determining whether a conspiracy exists. * * *"

Daniel Gallagher and Fred Brissa were among the five indicted. Brissa entered a plea of guilty and on the trial testified as a witness for the government. Gallagher pleaded not guilty, was tried with Nelson, and likewise was found guilty of the charge of conspiracy.

The evidence disclosed that a truck load of whiskey was shipped on April 14, 1949, from the Kinsey Distillery in Philadelphia to Chicago, and that on April 18, 1949, the truck with its contents was stolen from the depot of the Midwest Freight Lines in Chicago. It was also established by the testimony that Brissa and Gallagher had several conversations during a period of two or three weeks previous to April 18, 1949; that Gallagher asked Brissa if he could locate a garage on the far south side of Chicago where a big truck could be pulled in, and informed Brissa it would be a truck load of whiskey; that Brissa succeeded in locating a garage at 95th Street and Ewing Avenue; that on two or three occasions thereafter Gallagher telephoned Brissa, seeking reassurance that the space for the truck was available; that on April 18 Gallagher again called Brissa, saying, "We are ready. Have you got that garage all fixed up?" and upon receiving an affirmative answer directed Brissa to meet him at 95th Street and South Park Avenue, saying, "Get over there as fast as you can"; that when Brissa arrived he saw the defendant Nelson sitting with Gallagher in a green 1946 or 1947 Buick, Nelson being in the driver's seat; that after waiting awhile Nelson and Gallagher drove away but returned in 15 minutes; that after another half hour of waiting, Nelson, Gallagher and Brissa went into a tavern at the corner of...