FISHER et al. v. UNITED STATES, 2 F.2d 843

WOODS, Circuit Judge. The defendants, Lyda Fisher and Edward L. Cabell, alias Jonah Cabell, were convicted on an indictment charging conspiracy to violate the National Prohibition Laws (Comp. St. Ann.

Supp. 1923, § 10138¼ et seq.), “in that they would unlawfully, willfully, and knowingly sell, barter, transport, deliver, furnish and possess distilled spirits and intoxicating liquors, otherwise than as authorized in the aforesaid act of Congress, known as the ‘National Prohibition Act,’ and in violation of the provisions of the said National Prohibition Act.” The testimony for the government was as follows: On the afternoon of March 25, 1924, Lyda Fisher, one of the defendants, drove in an automobile to Morgan Court Apartments on Lower Washington street in the city of Charleston, W. Va.

She stopped the car, called to Ethel Ferrell on the porch, and asked if Robert Johnson wanted any whisky. Johnson was at that time living with Ethel Ferrell. Ethel replied that John- . son was in the house in bed and told Lyda Fisher to see him. Thereupon Lyda Fisher entered the house with Ethel Ferrell, and Johnson ordered two gallons of whisky, to be delivered at 8 o’clock that evening. At the time agreed, Lyda Fisher and Edward L. Cabell drove to Morgan Court Apartments, and Cabell got out of the car with two shopping bags in his hands.

He was on his way towards the house when a deputy sheriff arrested him and took two gallons of corn whisky from the bags. Lyda Fisher attempted to escape, but was arrested by another deputy sheriff who had jumped into the car. When the car was searched at police headquarters, four more gallons of moonshine whisky were found concealed behind the seat. The officers had no search warrant for the car.

Cabell did not testify, but Lyda Fisher’s version was this: On the afternoon of March 25th she was driving down Lower Washington street with Marie Perkins, when Ethel Ferrell hailed her from the front porch of the Morgan Court Apartments. She stopped, and Ethel inquired if she had any whisky. She told her she did not. She did not get out of the automobile, or go into the house. She did not see Robert Johnson, or make any arrangement with him to deliver whisky. Later that afternoon, Jonah Cabell, her divorced husband, came to her at her sister’s home and asked to be taken to the city.

She and Cabell, were driving around town, when at Cabell’s request she stopped in front of Morgan Court Apartments, where the officers arrested her and seized her ear. She did not see Cabell with any whisky, and did not know that there was any in her car. She admitted a prior conviction for violation of the prohibition laws. The evidence of the search of the automobile was competent, because made by state officers, and because the search of an automobile even by a federal officer under the circumstances proved would not have been unreasonable. Riggs v. United States (4th Circuit) 299 F. 273; Ash v.

United States (4th Circuit) 299 F. 277, both decided May 20, 1924; Kanellos v. United States (C. C. A. 4th Circuit) 282 F. 461; Milam v. United States (C. C. A. 4th Circuit) 296 F. 629. The record does not disclose that any grounds for the demurrer to the indictment were made known to the District Judge, nor do the assignments of error point out any defects to this court. The general assignment of error in overruling the demurrer is therefore without foundation. Connors v. United States, 158 U. S. 408, 411, 15 S. Ct. 951, 39 L. Ed. 1033; Withrow v. United States (4th Circuit) 1 F.(2d) 858; Hedderly v.

United States, 193 F. 561, 565, 114 C. C. A. 227, 31 C. J. 817; 14 R. C. L. 201. Waiving that, however, in argument counsel insisted that the indictment was defective for lack of allegation of time. The time of the conspiracy was made definite by reference in the charge of conspiracy to the time set out in the charge of the overt act. Joplin Mercantile Co. v. United States, 236 U. S. 531, 35 S. Ct. 291, 59 L. Ed. 705; Anderson v. United States, 260 F. 557, 560, 171 C. C. A. 341.

It is not necessary that the indictment should specifically negative all of the conditions under which the defendants could lawfully possess, transport, and sell liquors. National Prohibition Act, § 32. Objection was also made in argument that the indictment was fatally defective in that it charged a conspiracy to sell, barter, transport, deliver, furnish, and possess intoxicating liquors without specifying which one of these particular acts the defendants conspired to commit.

The record of the trial shows that the defendants fully understood the time, place, and circumstances of the offense alleged against them, and were in no way prejudiced by any defect in the indictment. In Connors v. United States, 158 U. S. 408, 411, 15 S. Ct. 951, 952 (39 L. Ed. 1033) as to three distinct offenses in one count, the court says: “If the objection now urged could have been taken by motion to quash the indictment, it is sufficient to say that although the record shows that there was such a motion, the grounds of it are not stated.

So far as the record discloses, the specific objection now urged was made for the first time after verdict by a motion in arrest of judgment. But such an objection, not made until after verdict, would not justify an arrest of judgment, and is not available on writ of error. 1 Bish. Crim Pro. §§ 442, 443; Wharton’s Crim. Pl. & Pr. § 255.

Nor, if made by demurrer or by motion and overruled, would it avail on error unless it appeared that the substantial rights of the accused were prejudiced by the refusal of the court to require a more restricted or specifle statement of the particular mode in which the offense charged was committed. Rev. Stat. § 1025 [Comp. Stat. Sec. 1691]. There is no ground whatever to suppose' that the accused was taken by surprise in the progress of the trial, or that he was in doubt as to what was the precise offence with which he was charged.” In Armour Packing Co. v. United States, 209 U. S. 56, 84, 28 S.

Ct. 428, 436 (52 L. Ed. 681) the court again said: “In the present case no objection was made to the indictment until after verdict by motion in arrest of judgment. Had it been made by demurrer or motion and overruled it would not avail the defendant, in error proceedings, unless it appeared that the substantial rights of the accused were prejudiced by the refusal to require a more specific statement of the particular mode in which the offense charged was committed. * * * Rev. Stat. U. S. § 1025; Connors v. United States, 158 U. S. 408, 411.” Martin & Allwood v.

United States (4th Circuit) 299 F. 287, decided May 19, 1924. The language italicized means that even if the trial court erred in overruling a demurrer to the form of the indictment the appellate court should not reverse when it appears that the substantial rights of the accused were not prejudiced on the trial. There is no doubt that the indictment in the ease before us charges an offense against the United States. The defendants contended that the offense was not charged with sufficient definiteness.

The objection, even if well taken, is met by the fact that upon order of the District Judge a bill of particulars was furnished which fully set out the details of the charge. Rosen v. United States, 161 U. S. 29, 35, 16 S. Ct. 434, 40 L. Ed. 606; Durland v. United States, 161 U. S. 306, 315, 16 S. Ct. 508, 40 L. Ed. 709. The motion to direct an acquittal of the defendant Cabell was properly refused. An agreement of two or more persons to commit any crime against the United States, with an overt act done in effecting its object, is indictable as a conspiracy. Williamson v. United States, 207 U. S. 425, 446, 28 S.

Ct. 163, 52 L. Ed. 278. In what cases it is wise, that the charge of conspiracy should he added to the charge of committing the criminal overt act is a matter not within the discretion of the appellate court. There was evidence that Cabell’s eoeonspirator, Lyda Fisher, made a criminal agreement with one Johnson that she would deliver to him two gallons of whisky* at 8 o’clock the same evening.

The’ evidence proved that at the hour agreed Cabell and Lyda Fisher arrived at Johnson’s place'of residence with six gallons of whisky in an automobile, and that Cabell got out -of the car and was going towards Johnson’s house with two gallons of whisky when he was arrested. This testimony, uneontradicted except by the unreasonable evidence of Lyda Fisher, was well-nigh conclusive that Cabell had agreed to join the conspiracy of Lyda Fisher and Johnson to transport, sell, and deliver two gallons of whisky to Johnson.

But leaving out of view any agreement between Lyda Fisher and Johnson, we do not see how it can be doubted from the evidence that Lyda Fisher and Cabell had agreed to transport and to sell and deliver the whisky to Johnson, and that they were in the overt act of carrying out the conspiracy when arrested. It hardly need be said that a conspiracy is often proved by the overt act. The fact that two men are found together breaking into a bank is indubitable proof that they, had agreed to commit the burglary. The instructions of the court were in accordance with the views herein stated.

There was no exception to the instruction of the District Judge referring to the failure of the defendant Cabell to testify; no error is assigned on that point; and no reference is made to it in the printed argument. We’do not think the court should lay hold of the instruction, even if erroneous, when the trial courtis attention was not called to it by exception or otherwise, to set aside a conviction clearly required by the evidence. Affirmed.