Foreman v. United States

28 F.2d 768, 1928 U.S. App. LEXIS 2455

• Court: Court of Appeals for the Eighth Circuit
• Decided: October 22, 1928
• Docket: No. 8067
• Status: Published

Opinion

POLLOCK, District Judge.

This writ of error is brought to reverse tbe judgment of conviction in a conspiracy ease, tbe conspiracy being charged as one “to commit offenses against tbe laws of tbe United States,” and contains two counts. Tbe only one involved here reads, as.follows:

“And tbe grand jurors aforesaid, on their oath aforesaid, do further present, that tbe said Pearl Williams Foreman, Ed Foreman, Sherman Raney and John Wilson on and pri- or to tbe 15th day of October, in tbe year 1926, in tbe said division of said district, and within tbe jurisdiction of said court, unlawfully and feloniously did conspire together and with each other and with other persons to tbe grand jurors unknown to commit offenses against tbe United States of America by then and there unlawfully possessing, transporting and selling intoxicating liquors for beverage purposes in violation of tbe National Prohibition Act (27 USCA), and also to engage in tbe business of retail liquor dealers •without having paid the special tax required by law, in tbe city of Fort Smith, Sebastian county, Arkansas, as alleged and set forth in count one of this indictment and incorporated herein by reference as fully as if set out herein.”

The-question raised is whether there were two offenses included in this count. In our opinion there was but one, namely, the offense of conspiracy. The fact that the conspiracy was to do two or more things, or to commit two or more offenses, does not make the count duplicitous. There was a single controversy. This has been passed upon by this court in John Gund Brewing Co. v. United States, 206 F. 386, and Allen v. United States, 4 F.(2d) 688.

Another question is whether the indictment was sufficiently definite. The exact time and place of the conspiracy were not stated, but this is not necessary. See Brown v. Elliott, 225 U. S. 392, 32 S. Ct. 812, 56 L. Ed. 1136, and Hyde v. United States, 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614, as to place, and Ware v. United States, 154 F. 583,12 L. R. A. (N. S.) 1053, 12 Ann. Cas. 233, Bradford v. United States (C. C. A.) 152 F. 617, and United States v. McKinley (C. C.) 127 F. 170, as to the question of time.

The third point made is that the law of section 3242, R. S. (26 USCA § 191), relating to retail and wholesale liquor dealers was not in force, but was repealed by the National Prohibition Act. Even if it were so repealed, as contended, it was revived by the Willis-Campbell Act of November 23, 1921 (U. S. C. tit. 27, § 3; 27USCA § 3).

We think there is no merit in any of the errors assigned and the judgment, therefore, must be affirmed.