TURCOTT v. UNITED STATES; PROBST et al. v. SAME, 21 F.2d 829

ANDERSON, Circuit Judge. Those writs of error were heard together and will be disposed of in the same way. Plaintiffs in error, together with eight other persons, were convicted of conspiracy to violate the Prohibition Law (27 USCA). At the close of all the evidence each of the defendants moved the court to direct the jury to return a verdict of not guilty, upon the ground that there was no evidence to sustain a verdict against them. These motions were overruled and excepted to. Plaintiffs in error sued out these writs and assign this ruling as error.

Many other errors are assigned, but in the view that we take of the case it is not necessary to consider them. The other defendants have not sued out any writs, and are not here questioning the sufficiency of the evidence to sustain a verdict against them. The contention of plaintiffs in error is that the evidence is not sufficient to warrant a verdict against them even if a conspiracy was established against two or more of the other defendants. They insist that there is no evidence to warrant the conclusion that they actively participated in the scheme or plan alleged.

The law is well settled that active participation must be established ; mere knowledge of the illegal acts of others is not sufficient. The evidence relied upon to connect plaintiffs in error with the conspiracy is uncontradicted, but it is wholly insufficient to warrant the conclusion of active participation. It was error for the court to overrule their motions to direct a verdict of not guilty, and the cause is reversed and remanded, with direction to grant plaintiffs in error a new trial.