Vannata v. United States, 120.

CourtU.S. Court of Appeals — Second Circuit
Citation289 F. 424
Decision Date05 March 1923
PartiesVANNATA v. UNITED STATES.
Docket Number120.

289 F. 424

VANNATA
v.
UNITED STATES.

No. 120.

United States Court of Appeals, Second Circuit.

March 5, 1923


[289 F. 425]

Morris Kamber, of Brooklyn, N.Y. (William Paul Allen and Otho S. Bowling, both of New York City, of counsel), for plaintiff in error. [289 F. 426]

Ralph C. Greene, U.S. Atty., of Brooklyn, N.Y., and Guy O. Walser, Atty. U.S. Atty., of New York City, opposed.

Before HOUGH, MANTON and MAYER, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above).

The 'amended assignment of errors' is open to all the objections enumerated in Fraina v. United States, 255 F. 28, 30, 166 C.C.A. 356. It is therefore disregarded, as was a similar document in Schonfeld v. United States (C.C.A.) 277 F. 934, 939.

The errors assigned in accordance with rule at the time of taking writ of error do not present in proper form any arguable point, and we have therefore examined this record for plain error not assigned, in accordance with the practice often set forth, but last stated in Gruher v. United States, 255 F. 474, 478, 166 C.C.A. 550.

In respect of proving that Vannata sold the whisky, that Farrell and that several other persons were actively concerned with Vannata in doing on a considerable scale what is now called 'bootlegging,' the record is full, and very far from containing any error that would result in 'serious injustice.'

A matter of considerable importance, however, is presented by the manner of indictment, considered in connection with the now uncontradicted facts. The question is whether Vannata and Farrell, the vendor and vendee of the whisky, can, either alone or in conjunction with others, be treated as members of a conspiracy to effect an unlawful sale, when the proof is clear that the sale, its preliminary bargaining and actions of agents or servants of both seller and buyer, constituted the entire transaction.

It is not material that Vannata alone was indicted; one conspirator may be singly indicted and convicted, if it appear that the basis of a charge remains against a plurality, which includes the accused. Feder v. United States, 257 F. 694, 168 C.C.A. 644, 5 A.L.R. 370.

Nor does it avoid the result below that proof of this conspiracy consisted in proving its success, which here means that the agreement to sell and the consequent sale was the conspiracy; for 'liability for conspiracy is not taken away by its success-- that is, by the accomplishment of the substantive offense, at which the conspiracy aims. ' Heike v. United States, 227 U.S. 131, 144, 33 Sup.Ct. 226, 229 (57 L.Ed. 450, Ann. Cas. 1914C, 128).

Neither is it a good objection to this prosecution for conspiracy to commit a crime that only one of those named, or indicated by the phrase 'others to the grand jurors unknown,' could possibly perform the ultimate illegality; i.e., the sale by Vannata. It is confederation that constitutes the crime of conspiracy at common law; our statute adds an overt act, whether as an ingredient of crime or as a condition precedent to indictment, is a mere piece of metaphysics. The fact remains that the necessary overt act need not be criminal per se, and that inability to commit the substantive offense is not a disability to conspire. The doctrine is traced to its origin in United States v. [289 F. 427]

Bayer, Fed. Cas. No. 14,547, by Dillon, J., and also in Johnson v. United States, 158 F. 69, 85 C.C.A. 399, 14 Ann.Cas. 153.

Nor can the offense of conspiracy be said to have merged in the criminal sale. Under the present Code, conspiracy is a felony, while the sale is but a misdemeanor. These historic words have now only their statutory meaning, and the application of reasoning based on their...

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32 practice notes
  • May v. United States, No. 9610-9612.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 24, 1949
    ...7 Cir., 1931, 53 F.2d 956, certiorari denied, O'Leary v. United States, 1931, 283 U.S. 830, 51 S.Ct. 366, 75 L.Ed. 1443. 25 2 Cir., 1923, 289 F. 424. 26 United States v. Dietrich, C.C.Neb. 1904, 126 F. 27 Gebardi v. United States, 1932, 287 U.S. 112, 53 S.Ct. 35, 77 L.Ed. 206. 28 United Sta......
  • Marron v. United States, No. 4523.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 5, 1925
    ...S. v. Rabinowich, 238 U. S. 78, 85, 35 S. Ct 682, 59 L. Ed. 1211; Rudner v. U. S. (C. C. A.) 281 F. 516, 518; Vannata v. U. S. (C. C. A.) 289 F. 424, 426. Nor is it essential that the indictment should show a necessary or logical relation of the overt act to the conspiracy. It is sufficient......
  • Com. v. Favulli
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 1, 1967
    ...indicates that an indictment for conspiracy of one buyer and one seller of whisky would be doubtful, but cites Vannata v. United States, 289 F. 424 (2d Cir.), where the seller was convicted, having acted in concert with several others. We are not impressed with and doubt the present force o......
  • Calhoun v. Superior Court In and For San Diego County
    • United States
    • United States State Supreme Court (California)
    • December 30, 1955
    ...271 U.S. 354, 46 S.Ct. 513, 70 L.Ed. 986; Vannata v. United States (recognizing rule but holding it inapplicable under facts), 2 Cir., 289 F. 424; Robilio v. United States (liquor transportation; recognizing rule but holding it inapplicable under facts), 6 Cir., 291 F. 975, certiorari denie......
  • Request a trial to view additional results
32 cases
  • May v. United States, No. 9610-9612.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 24, 1949
    ...7 Cir., 1931, 53 F.2d 956, certiorari denied, O'Leary v. United States, 1931, 283 U.S. 830, 51 S.Ct. 366, 75 L.Ed. 1443. 25 2 Cir., 1923, 289 F. 424. 26 United States v. Dietrich, C.C.Neb. 1904, 126 F. 27 Gebardi v. United States, 1932, 287 U.S. 112, 53 S.Ct. 35, 77 L.Ed. 206. 28 United Sta......
  • Marron v. United States, No. 4523.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 5, 1925
    ...S. v. Rabinowich, 238 U. S. 78, 85, 35 S. Ct 682, 59 L. Ed. 1211; Rudner v. U. S. (C. C. A.) 281 F. 516, 518; Vannata v. U. S. (C. C. A.) 289 F. 424, 426. Nor is it essential that the indictment should show a necessary or logical relation of the overt act to the conspiracy. It is sufficient......
  • Com. v. Favulli
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 1, 1967
    ...indicates that an indictment for conspiracy of one buyer and one seller of whisky would be doubtful, but cites Vannata v. United States, 289 F. 424 (2d Cir.), where the seller was convicted, having acted in concert with several others. We are not impressed with and doubt the present force o......
  • Calhoun v. Superior Court In and For San Diego County
    • United States
    • United States State Supreme Court (California)
    • December 30, 1955
    ...271 U.S. 354, 46 S.Ct. 513, 70 L.Ed. 986; Vannata v. United States (recognizing rule but holding it inapplicable under facts), 2 Cir., 289 F. 424; Robilio v. United States (liquor transportation; recognizing rule but holding it inapplicable under facts), 6 Cir., 291 F. 975, certiorari denie......
  • Request a trial to view additional results

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