WESTFALL v. UNITED STATES; MERSEL v. SAME; TANSEY v. SAME, 2 F.2d 973

PER CURIAM. Complaint is made that, in this prosecution for conspiracy, evidence was received of overt acts other than those specified in the, indictment. The record shows no objection or exception. We are also told that for lack of necessary proof a verdict of acquittal should have been directed; but, again, the record shows no motion for a directed verdict, nor any objection or exception raising that point. It is the settled rule in this court that

section 269 of the Judicial Code, as amended (Comp. St. Ann. Supp. 1919, § 1246), was not intended to promote reversals by removing the necessity for any ruling by the court below upon the point before it can be raised on review, but that, just as before the amendment, in such a ease we reverse only where it appears that there had been a plain and vital error, indicating a miscarriage of justice in the result, Robilio v. U. S., 291 F. 975, 980. We see no such error. Evidence of any act tending to show the conspiracy was relevant, though only one act need be alleged.

The inference that the. separate sales made by the individual defendants were pursuant to a precedent common plan, and therefore showed a conspiracy, rather than sales merely, was not a necessary inference, but was one which the jury might rightfully draw from all the circumstances. Whether the sales occurred depends solely on the respective credibility of the witnesses, and we cannot review the weight of evidence. The judgment in each of the three cases is affirmed.