Wilder v. United States, 1694

• Decision Date: 28 November 1938
• Docket Number: No. 1694,1697.,1694
• Citation: 100 F.2d 177
• Parties: WILDER v. UNITED STATES. STEIN v. SAME.
• Court: U.S. Court of Appeals — Tenth Circuit

100 F.2d 177 (1938)

WILDER v. UNITED STATES.

STEIN v. SAME.

Nos. 1694, 1697.

Circuit Court of Appeals, Tenth Circuit.

November 28, 1938.

A. F. Moss, of Tulsa, Okl. (H. R. Young, of Tulsa, Okl., on the brief), for appellant Lew Wilder.

C. A. Warren, of Tulsa, Okl. (Hugh Ownby, of Tulsa, Okl., on the brief), for appellant Harry Stein.

Whit Y. Mauzy, U. S. Atty., and Paul O. Simms, Asst. U. S. Atty., both of Tulsa, Okl.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

BRATTON, Circuit Judge.

The indictment in this case contained two counts. Lew Wilder, Enos Pickett, Ben E. Chandler, Curtis Brumley, Everett S. Collins, Harry Stein, and thirteen others were charged in the first count with entering into a conspiracy among themselves and with fifteen other named persons and with divers others whose names were unknown. The purposes of the conspiracy charged in that count were that they would engage in the business of distilling whiskey and other distilled spirits without registering the stills used, carry on the business of distillers at various places without giving bond and with the intent to defraud the government of tax on the spirits distilled, make mash fit for distillation on premises other than a distillery authorized according to law, remove distilled spirits on which the tax had not been paid to a place other than a distillery warehouse, conceal distilled spirits so removed, and possess distilled spirits in containers not bearing the strip stamps required by law, all in Creek County, Oklahoma, in violation of Sections 1152a, 1152g, 1162, 1184, 1397(a) (as amended), 1185, and 1287 (as amended), of Title 26, U.S.C.A.; and it was charged that the duration of the conspiracy was from February 1, 1935, to September 1, 1937. Seventeen overt acts were set forth. Wilder was found guilty on the first count and not guilty on the second; Stein was found guilty on both counts but the court granted him a new trial on the second; and John E. Whitwell was found guilty on the second count, but the court granted him a new trial. Wilder and Stein perfected separate appeals. All parties stipulated that both appeals be heard upon a single record, and disposition may conveniently be made of them together.

The sufficiency of the evidence to support the verdict is challenged. The question is deemed to be decisive and eliminates need to discuss others. Accordingly, we proceed immediately to its consideration. Wilder was elected sheriff of Creek County in 1914 and served one term. He was elected again in 1934, was re-elected in 1936, and was holding office when indicted and when tried. Pickett, Chandler, and Brumley were his deputies at the time of the trial; Collins was county attorney; and Stein was the first sheriff of the county after statehood, and was later deputy under Doc Livingston. Emma Foreman was engaged in selling illicit liquor near Bristow, in Creek County, in 1933, 1934, and 1935. Stein came to her place in April or May, 1935, and told her that he had been sent by Wilder to collect for the liquor business, and that she was to pay $100 back money and $25 per month. She replied that she was not making anything and could not pay the $100. He returned in two or three weeks, and she again told him she could not pay $100. He came again a day or two later, at which time she paid him the $25 and told him that the next time she was in Sapulpa she would pay the $100. About a week later she borrowed $100 from the bank, but changed her mind on the way to Sapulpa and decided not to pay it to Stein, and returned it to the bank. Sometime between Stein's first and second trips to her house she went to the office of Wilder in Sapulpa and told him that she was not making any thing and could not pay the $100. He replied that it was her hard luck and that she had better quit. She went to see Stein later in the day and told him that she could not pay the $100, and he said that she would have to pay it. Some time thereafter she talked with Wilder on the telephone. That conversation took place immediately after federal officers raided her place in 1937 and found some whiskey. She told Wilder that an article had appeared in the local paper stating that he made the raid and arrested her. She asked him why he caused the article to be published. He replied that he did not have it done; that he did not know anything about it; and that they had been friends for thirty years — too long to fall out. She then told him that if he failed to have the article retracted she would put one in the paper saying it was not true; and he asked her not to do that because it would just keep things stirred up. She was charged with possession of the liquor seized by the federal officers and she pleaded guilty but had not been sentenced at the time she testified in this case. Stein went to Roy Kennedy's place near Bristow in April, 1935, and told Kennedy that he understood he was making whiskey and that he should get lined up. Stein asked Kennedy how much he would be willing to pay and he said $50 per month. Stein returned later for the money, and demanded $100 in back pay. Kennedy said he could not pay it, and Stein replied that he could pay a little on it. Kennedy offered a check but Stein refused it. Kennedy tried unsuccessfully to get the check cashed, and Stein said he would come again later. He came later; Kennedy told him that the federal officers were raiding, and that he believed he would quit. In response, Stein said that he could not do anything with the federal officers, but that if any of the other officers raided Kennedy would be notified. In the course of the conversation Stein said he was doing this for Lew. Forces from Wilder's office raided Kennedy's place of business twice in the summer of 1935. They got some whiskey on one occasion, but did not get his still. Kennedy pleaded guilty in 1932 to a violation of the national prohibition law, 27 U.S.C.A. § 1 et seq.; and he pleaded guilty in 1936 to a violation of the Revenue Act. He was given a suspended sentence in the first case; he was placed on parole in the second; the parole was revoked in 1938 for further misconduct; and he was serving a sentence in the federal prison at the time he testified in this case.

Sam Brewer was engaged in the manufacture of liquor in an unregistered still. He had several conversations with Stein. Stein told him to be careful and not get arrested, and that later the two could make some money together. Stein said on one occasion that they received reports that he was selling whiskey to women. He advised him to quit selling to women and to go into the wholesale business. Brewer was arrested twice before Wilder became sheriff in 1935 and twice afterwards. Following the first raid in 1935, a complaint was filed against him in the county court; he entered a plea of guilty, and was sentenced to serve thirty days in jail and to pay a fine of $50. At the time of the second arrest, one of Wilder's deputies told him that he heard he had been talking, and that was the reason for the arrest. He told Brewer to come to Sapulpa for court and that he thought it could be fixed up. Brewer went to Sapulpa and told Wilder that they had caught his still. Wilder said he did not have any sympathy for him and that he was going to file charges against him. Brewer said he would make bond and. Wilder told him he could not do so that day for the reason that there was not anyone in town to approve it. Brewer then went to the office of the county attorney and took his bondsmen with him. He made substantially the same statement to the county attorney that had been made to Wilder. The county attorney directed him to go home and that he would be called when wanted. The record fails to show whether anything further was done concerning the matter.

Joe Allensworth operated a filling station near Bristow, and his brother Labe Allensworth assisted him. Stein stopped there several times, the first being in August, 1935. He inquired how they were getting along and whether he could do them any good. He did not explain what he meant but Allensworth took for granted his meaning. Stein came again about five months later and Allensworth gave him $35; and he returned later and Allensworth told him that he could not do him any good. A repairer engaged in repairing a slot machine in the rear room of the station overheard a statement made in the front room that the person speaking "could have it fixed where they wouldn't be troubled"; but no amount was mentioned. A few minutes later the repairer stepped out in front of the station, saw Stein walk out and get in an automobile, and then knew that it was Stein who made the statement. On one occasion Labe Allensworth overheard a part of a conversation between his brother and Wilder at the station, in which Wilder stated that they were running a nice place, and that they would have to get on the right side with him. Joe Allensworth had a retailer's stamp issued by the United States, and it was posted in his place of business. He testified that they sold only taxpaid liquor, and that on one occasion he gave deputies Brumley and Chandler liquor to drink; but his brother testified that they sold both taxpaid and moonshine liquor. State operatives raided the place in 1936, and a case growing out of the raid was pending against Labe Allensworth at the time this case was tried; but members of the sheriff's force of Creek County never raided the place at any time. Ruby Arrington was engaged in keeping house in 1935, but she had been connected with an inn at which sandwiches, beer, and taxpaid liquor were sold. Sometime in 1935, one Robinson and Wilder came to her place. Robinson wanted to rent the place. He did not say at that time the purpose for which he wanted it, but did later when Wilder was not present. About a year later Stein demanded money from her and said he must have $35; she stated that she was not doing anything, and that he would have to...