
    No. 314
    WINDSOR v. UNITED STATES
    U. S. Court of Appeals, 6th Circuit
    No. 3723.
    Jan. 9, 1923
    286 Fed. 51
    CRIMINAL ’ LAW — (1) Conspiracy — Evidence of sustained — (2) Proof of unlawful acts — (3) Jury questions — (4) Instructions held to cure objections to argument of attorney — (5) Search and seizure —Affect of consent to search — (6) Objection to charge specific overt acts.
    Before Knappen, Denison and Donahue, Circuit Judges
    Error to the District Court and the N. D. Ohio, E. D. Westenhaver, Judge
   DONAHUE, C. J.

Epitomized Opinion

Windsor, was jointly indicted with three others, the indictment containing four counts. The first count charged conspiracy to violate the National Prohibition Law. The sec.pnd, unlawful possession of alcohol. The third, unlawful transportation of distilled spirits, and the fourth, unlawful and felonious affixing of counterfeited revenue stamps.

Attorneys — Wm. Gordon and A. L. Kreisberg Cleveland, for Windsor; Berkley W. Henderson, Asst (E. S. Wertz, U. A. Atty., and D. J. Needham, Asst.) Cleveland, for United States.

Different defendants entered different pleas to the different counts of the indictments, and, as to some of the defendants, the counts were nolled. Windsor pleaded guilty to the second and third counts and the court directed a verdict of not guilty as to the fourth. A motion for a new trial was overruled and sentence" imposed. In affirming the decision of the district court, the court of appeals held:

1. The plea of guilty by Windsor to counts of the indictment alleging violations of the prohibition act jointly by him and a co-conspirator, while they do not tend to prove a conspiracy, for the purpose of this case, his plea of guilty of these offenses may be wholly disregarded. But there is substantial evidence in the record tending to prove that when he was arrested, Windsor was in possession of alcohol fit for beverage purposes and was transmitting the same in an automobile that he was driving.

2. The government is not required to furnish direct proof of the unlawful plan or agreement entered into by conspirators, but such charge may be sustained by evidence showing a concert of action in the commission of an unlawful act, or by proof of other facts from which the natural inference arises that the unlawful overt act was in furtherance of a common design of the alleged conspirators.

3. While both defendants denied conspiracy and a joint enterprise in the commission of unlawful acts as charged, the testimony being conflicting, the credibility of the witnesses and the weight of the evidence are questions for the jury and not for this court.

4. The argument of the district attorney as to the effect of the testimony was cured by the instructions of the court to the jury on the questions, and the general charge, and definition of criminal conspiracy, to which no objection was made.

5. As the defendant, when arrested, gave an erroneous address and went with the officers and showed them his wrong address, which was given in the warrant, the consent to search his true house was not unlawful and did not prevent the admission of the liquor seized in evidence.

6.The refusal of a request to instruct the jur^ that if they found the defendants guilty of conspiracy, they should find specifically and report to the court which of the overt acts alleged in the indictment were committed by one or more of the persons charged with the conspiracy, was not prejudicial to the accused where he had pleaded guilty tc the other counts charging the same acts.

Upon the whole record it clearly appears that nc error intervenes in the trial of this cause to th« prejudice of the plaintiff, Windsor, and the judg ment of the district court is affirmed.  