
    BOOTH v. UNITED STATES, and six other cases.
    Nos. 453-459.
    Circuit Court of Appeals, Tenth Circuit.
    March 23, 1932.
    
      LEWIS, Circuit Judge, dissenting.
    J. B. Dudley, of Oklahoma City, Okl. (D. L. Clement, of Teeumseh, Okl., James H. Mathers, of Oklahoma City, Okl., and W. L. Cha pman, of Shawnee, Okl., on the brief), for appellants.
    William Earl Wiles and D. E. Hodges, both of Oklahoma City, Okl. (Herbert K. Hyde, of Oklahoma City, Okl., on the brief), for the United States.
    Before LEWIS and COTTERAL, Circuit Judges, and KENNAMER, District Judge.
   KENNA.M.ER, District Judge.

Appellants and several other defendants were convicted upon an indictment charging a conspiracy to violate the National Prohibition Act. The indictment charged, and the proof presented on the trial of the case nnder the indictment established, that a conspiracy was formed on or about the 1st day of October, 1926, in Pottawatomie county, Okl., and continued without interruption until September 20,1929. The purposes of the conspiracy so entered into and understood were the unlawful trafficking in intoxicating1 liquor in Pottawatomie county, Okl. Twenty-six overt acts wer*e charged to have been committed involving the unlaw'ful sale, transportation, and manufacture of intoxicants. A number of the defendants charged m the indictment were not apprehended; there were dismissals as to others; many of those charged have pleaded guilty; and the jury returned a verdict of guilty as to the appellants.

Separate and distinct appeals have been taken on behalf of seven of those convicted in the court below. The same propositions are relied upon by each of the appellants for reversal of the ease, and the appeals will be treated in a single opinion; the several appeals having been lodged upon a single record.

The evidence disclosed that soon after the discovery of oil in Pottawatomie and Seminole counties, Okl., and in the latter part of the year 1926, Pottawatomie county attracted numerous persons. Many were engaged in employments in the oil fields within the county; and many persons became engaged in criminality. The officials of the county and of the oil field town, Earlsboro, set out upon a plan of organized crime for the purpose of enriching themselves personally by promoting the traffic in intoxicating liquors upon a most gigantic scale. One o£ the chief promoters of the scheme was the sheriff of Pottawatomie county, who was convicted in this ease and who is not prosecuting an appeal. Homer Knapp enberger, the mayor of the town of Earlsboro, a boom oil field town, located in Pottawatomie county, was another. He was convicted in the trial of the case and is not prosecuting an appeal. Deputy sheriffs, constables, sheriffs, and mayors, as well as other officers, were all involved in this scheme and orgy of viee and crime. Decent citizenship was betrayed by trusted officers for more than three years, resulting in a most appalling condition of criminality. By reason thereof e-rimes were committed; the liquor business was engaged in in open defiance of the laws of the state and nation. The record shows that the dark blight of their unlawful business was so notorious as to be common knowledge of all within the confines of this territory.

The evidence shows that Homer Knap-penberger was one of the originators of the conspii-acy, which continued until it was terminated by federal officers in the year 1929. Knapponberger was the mayor of Earlsboro. He entered a, plea of guilty in the ease and testified as a witness for the government. His testimony reveals that he served as mayor of Earlsboro for something like ten years, being a resident and an official of the town during the year 1926, which was the; year of the discovery of oil near Earlsboro. The chief of police of Earlsboro, Marion Puller, a defends ant in this ease, died about ten days before the trial. Knappenberger entered into an’ agreement with Puller, the chief of police, for the handling of what the witness termed “joints” in the town of Earlsboro. Puller suggested to Knappenberger that money could be obtained from the joints, without any one, knowing about it. In pursuance of the arrangement, the chief of police generally collected from $5 to $10 from each place where intoxicants were handled for protection against arrest so far as city police were concerned. The chief of police raided all other places and persons engaged in the liquor traffic who refused to pay a sum of money which was satisfactory to him. Those who paid the required sums were not raided, arrested, or molested. When this conspiracy and agreement was entered into between the mayor and the chief of police of Earlsboro, there were only three joints or places where intoxicants were being sold on the “line” who paid the required sums to the chief of police and may- or, but the number increased very rapidly.

One of the appellants, Bob Keys, operated a drug store in Earlsboro where intoxicants were sold, and the testimony as to Keys reveals that appellant Keys paid the required sum to the chief of police and mayor for protection.

Knappenberger further testified that he was advised by Fuller, chief of police, in December, 1926> that there was a county “line” which the witness defined as places where liquor was being sold and handled Avho were paying sums of money to county officials for protection against arrest and raids. Upon obtaining this information, a discussion of the subject was had with Frank Fox, the sheriff of Pottawatomie county; the chief of police having also discussed it with one Motley, a deputy sheriff. Sheriff Fox advised Knap-penberger that Motley was a deputy sheriff who was employed by the sheriff and Randall Pittman, county attorney of Pottawatomie county, to collect sums of money from those engaged in handling intoxicating liquors. An arrangement was made by which Motley and Fuller were to collect all sums of money for this unlawful purpose and they were assisted in the collection by one Skinny Grace, who was introduced into his work by Deputy Sheriff Motley. The evidence showed that these three collectors were so, diligent in their efforts that tribute was exacted as many as three or four times a week from the bootleggers, or from the joints or places where intoxicants were handled. In fact, collections ¡were so frequent that the situation became alarming to Chief of Police Puller, and he was compelled to take the matter up with Mayor Knappenberger to ascertain what could be done, because the chief of police feared that the bootleggers were not going to stand for the exaction of so much money very much longer. This resulted in the chief of police engaging Deputy Sheriff Motley to arrange a conference with Sheriff Fox. The conference was held between the sheriff and the chief of police and deputy sheriff) and it was agreed that a new schedule of payment was to be employed, by the terms of which the town of Earlsboro officers were to receive $1 on each ease of beer and $1 on each gallon of whisky, and the county officials of Pottawatomie county were to obtain similar sums upon all whisky and beer handled within the county.

The mayor further testified that numerous sums of money were collected from parties engaged in the sale of intoxicating liquors, as well as gambling and other crimes. Because of the extent of vice and crime Pottawatomie' county became notorious; its citizens were helpless; its local government, because of corrupt officials, was ineffective to cope with the situation. An appeal was made to the Attorney General of the State of Oklahoma, resulting in the Attorney General sending one Oscar Gordon, an Assistant Attorney General of the State of Oklahoma, to Pottawatomie county to investigate the town officials of Earlsboro, including the mayor and chief of police, and this investigation was conducted during the month of August, 1927. At the suggestion of the County Attorney Pittman, the mayor of Earlsboro paid Gordon, a member of the Bar of Oklahoma and an assistant in the Attorney General’s office in this state, certain sums of money to protect the town officials from prosecution. Part of the agreement with Gordon was that Fuller, chief of police, would resign. Fuller complied wúth the arrangement by resigning and one Bill Rigney, another defendant in this ease, was appointed to fill the vacancy. Rigney served in that capacity for about five months. During his regime as' chief of police the manner of collecting the money from the joints was changed, in that it was collected as fines and was paid to the town of Earlsboro.

About June 20,1928, Clarence Burdette, a defendant in this ease, was appointed chief of police. About the timeof his appointment, Gordon came back to Pottawatomie county and demanded $1,000 in addition to what he had theretofore been paid. This demand re-suited in a conference between the mayor and chief of police of Earlsboro and Mr. Gordon was paid the sum he had demanded. Mayor Knappenberger included in his testimony that Chief of Police Burdette was engaged in the oporation of a still on the mayor’s farm south of the town of Earlsboro and that the chief of police moved about one thousand gallons of whisky to a gin as a place of storage; the mayor having a financial interest in the gin.

Chief of Police Burdette testified on behalf of the government that he went to Pottawatomie eounty about March 16,1927, during the time Ms uncle, Knappenberger, was mayor; that lie went to Pottawatomie eounty for the purpose of engaging in the liquor traille; that prior to the time of Ms going to Pottawatomie countv, he had been engaged in the liquor .traffic in Grady eounty, OH., for about four rears. He had made an agreement with Dep-iity Sheriff Motley, Chief of Police Fuller, and Mayor Knappenberger to furnish liquor for Pottawatomie county. This arrangement was made before Burdett became chief of police and while Fuller held that position. The witness advised the officials that he liad about four thousand gallons of whisky in Caddo county and was advised by the mayor that Pottawatomie county would be a good place for its sale. He further testified that the appellants John Baugh and Barney Lovette, as well as other defendants in the case, terns-ported the liquor for him into Pottawatomie county. He also testified that Mayor Knap-penherger explained to him about the protection afforded by hotli the town and county officials and also advised him how mueh money was obtained from those engaged in the liquor business by the town and county officials. His testimony also disclosed that after he became chief of police of Earlsboro he made collections from the joints and from those engaged in the illicit handling of liquor, and that during the time he was chief of police ho supplied most of the whisky to the joints and to those operating places where intoxicants were sold.

During the fall 1928, Frank Stewart was electod sheriff of Pottawatomie eounty, and in the latter part of December of the same year Chief of Police Burdette made an arrangement with the newly elected sheriff, by the terms of which the eounty would still afford protection to those engaged in the liquor business, upon Sheriff Stewart receiving sums of mony, as had his predecessor in office.

The witness testified that appellant Lovette and others urged him to go to Shawnee for the purpose of taking charge of the wholesale liquor business for the eounty. An arrangement was made with appellants Baugh and Lovette, as well as with others, including one W. W. Yoder, in which a conference was held with the county attorney and sheriff, re-suiting in an agreement by which these two county officials were to receive $1,500- per month. The witness moved into Shawnee, whero he actively engaged in the liquor business under arrangements that Sheriff Stew-ayfc 'was to abide by whatever arrangements tiia predecessor Eox had made with reference to the collection of money from those engaged in the liquor traffic. The witness testified that during the fn-st three months of 1929' about oiffht thousand gallons of liquor were moved ^rom Grady county to Pottawatomie eounty and disposed of by him in the latter eounty. H" told of payments of sums of money he had made to former Sheriff Eox subsequent to the conference he had held prior to his removing to Shawnee, and also told of the raid that had keen made on the still located on Mayor Knappenborger’s farm during the month of April, 1929, by federal officers. He testified about the efforts of Ex-Sheriff Fox to find ou1S who was responsible for the raid and of having_a conversation in whieh Fox had advii!e(i him that Sheriff Stewart had instructed -®'ox ^wo constables, whom they thought were responsible for the raid, to not molest ^Kl s^h

The testimony of these witnesses, aug-merited and corroborated by a mass of other evidence, conclusively established the allegations of the indictment that there was formed and entered into in the latter part of 1926, in the town of Earlsboro, a conspiracy to violate the provisions of the National Prohibition Act, and that this conspiracy was active and operating until terminated by federal officers in the year 1929.

Roy Grace) a witness for the government, testified that he had known the appellant Motsenbocher for ten or twelve years and that lie was engaged in the liquor business as a bootlegger; that he had assisted appellant Motsenbocher in delivering two cans of -alco-hoi to a drug store operated by appellant Bob Keys; and that prior to the delivery of the alcohol hq had been in conversation with Sheriff Fox, in whieh Fox had advised the witness that appellant Motsenbocher had charge of the alcohol line,

Another witness, Clyde Peddicord, testi-fled that appellant Motsenbocher operated a gambling house and whisky joint and that Motsenbocher advised the witness, in response to a question as to how he was permitted to engage in the liquor business, that he was a good friend of the county officials.

James H. Webster, who testified for the government, stated that appellant Motsen-boeher called at his place of business in an effort to sell the witness whisky, and that on this occasion appellant Motsenbocher stated that if the witness would buy whisky of Mot-senbocher, he would arrange protection for him as he had it fixed with the county.

There is an abundance of evidence showing the activities of each of the appellants in tíre liquor traffic, -.which they conducted under the protection afforded them by town and county officers. It is unnecessary to further detail the activities of each of the appellants, as the reeord shows that each of them actively participated in violating the National Prohibition Act, and that in doing so they were acting in combination with the town and county officials, who had planned to permit the violation of the Prohibition Law.

The first proposition relied upon by appellants for reversal of the case is that the evidence was wholly insufficient to connect appellants, defendants below, with the alleged conspiracy and that the trial court erred in overruling the motion of appellants for directed verdicts.

The second proposition presented by appellants is that there was a variance between the allegations of the indictment and the proof; that two or more distinct and unrelated conspiracies were established by' the evidence; and that the trial court committed error in denying appellants’ motion for directed verdict, because of the fatal variance in the allegations of the indictment and the proof.

The third proposition urged for a reversal is that the trial court erred in refusing defendants’ instructions as to the law applicable to two or more separate and independent conspiracies.

The evidence amply supports the verdict of the jury as to all the appellants herein. Defendants’ guilt is for the jury to determine where substantial evidence is presented from which guilt could legitimately be found. Rosenthal v. U. S. (8 C. C. A.) 45 F.(2d) 1000; Holt v. U. S. (7 C. C. A.) 45 F.(2d) 392.

The record in this case discloses that there is no merit in the appellants’ first proposition. There was sufficient evidence to go to the jury and the demurrer of the appellants to the evidence and their motions for directed verdicts were properly overruled and denied by the trial court.

In support of the second proposition of appellants, that there was a fatal variance in the allegations of the indictment and the proof, the ease of Marcante v. U. S. (C. C. A.) 49 F.(2d) 156, is relied upon. Judge McDermott in delivering the opinion of the court in that ease said: “There is no doubt that there' can be a conspiracy to violate the liquor laws in a dozen different localities; such a conspiracy may be a continuing one; actors may drop out, and others drop in; the details of operation may change from time to time; the members need not know each other, or the part played by others; a member need not know all the details of the plan or the operations; he must, however, know the purpose of the conspiracy and agree to become a party to a plan to effectuate that purpose. A conspiracy is bottomed on an agreement to accomplish an illegal act, and without such agreement there can be no conspiracy; a conspiracy ‘is a partnership in criminal purposes.’ United States v. Kissel, 218 U. S. 601, 31 S. Ct. 124, 126, 54 L. Ed. 1168; Brown v. Elliott, 225 U. S. 392, 32 S. Ct. 812, 56 L. Ed. 1136; McDonnell v. United States (C. C. A. 1) 19 F.(2d) 801; Allen v. United States (C. C. A. 7) 4 F.(2d) 688; Rudner v. United States (C. C. A. 6) 281 F. 516.”

The rule as contended for by the government is clearly recognized and approved in this opinion; but the court, upon the facts in this ease, concluded that the government had failed to establish that a general statewide conspiracy existed as charged in the indictment. It is true the state law enforcement commissioner, one of the defendants, had solicited and accepted bribes from liquor dealers in the several cities and towns of Wyoming, but because of disassoeiation of the various defendants and localities with each other, and the failure of the proof to establish that the various groups were cooperating in their efforts .to accomplish the alleged unlawful acts, it was held the government had failed to establish a statewide general conspiracy as charged.

In the instant ease the proof clearly brings the ease within the rule announced in Allen v. U. S. (C. C. A.) 4 F.(2d) 688, 691. In this case a conspiracy between officers of the law to sell protection throughout the town of Gary, Ind., was established, and the defendants knowing of such a general conspiracy entered therein. Judge Evans, speaking-for the court in the ease, supra, said: “A conspiracy may be established by cireumstan-. tial evidence or by deduction from facts. The common design is the essence of the crime, and this may her made to appear when the parties steadily pursue tho same object, whether acting separately or together, by common or different means, but ever leading to the same unlawful result. If the parties acted together to accomplish something unlawful, a conspiracy is shown, even though individual conspirators may have done acts in furtherance of the common unlawful design apart from and unknown to the( others. All of the conspirators need not be acquainted with each other. They may not have previously associated together. One defendant may know but one other member of the conspiracy. But if, knowing that others have combined to violate the law, a party knowingly co-operates to further the object of the conspiracy, he becomes a party thereto.”

It cannot he seriously doubted from a consideration of all the evidence in the case hero that the appellants, and the other defendants, engaged in the unlawful sale, manufacture, and transportation of intoxicating liquors from the beginning to the termination of tho conspiracy charged in the indictment by the payment of protection money to tho officers of the law, co-operated and united their efforts towards the ultimate object of being able to cany on their criminal business under the official protection of such officers, and as a part of the common scheme to have destroyed any competition not operating under such protection. Merely changing' the details, or manner of collecting the protection money, or the personnel of the retailers and wholesalers engaged in the liquor business, did not affect the ultimate object of tho conspiracy.

We do not think there there is a variance in the allegations of the indictment and the proof, as tho evidence supported the allegations of thq indictment. True it is that certain members charged with the conspiracy did not know other members, and probably did not know tbe details of tho plan, or the extent of tho operations. Each of them, however, clearly understood the purpose of tho conspiracy, to wit, to engage in the liquor traffic in defiance of tho laws of the state and nation, and had joined in the conspiracy, by either paying or receiving money to aid in such law violation. We, therefore, conclude that thei’e is no merit iu the second proposition urged by appellants.

The third preposition is that the court erred in refusing defendants’ instructions as to the law applicable to two or more separate and independent conspiracies. "We have carefully examined the instructions of the court, and it appears they very fully and fairly stated the law applicable to the ease. The theory of the government as to one general continuing conspiracy and of the defendants as two or more sepi} rate and independent conspiracies was fully covered by tho court’s general instructions. The refusal of a requested instruction covered by instructions given constitute no error. Haffa v. U. S. (C. C. A.) 36 F.(2d) 1, certiorari denied 281 U. S. 727, 50 S. Ct. 240, 74 L. Ed. 1144; Spalitto v. U. S. (8 C. C. A.) 39 F.(2d) 782.

The last proposition urged is that tho trial court committed fundamental error in its instructions to the jury concerning the disposition of the caso as to certain of the defendants. In the instruction complained of, the trial court advised the jury as to the disposition of the caso as to certain defendants who had entered pleas of guilty, and as to tho sustaining of demurrers and motions for directed verdicts as to other defendants. No objections or exceptions were interposed to this instruction. It is the duty of a defendant to take his exceptions to the charge of tho court in tho presence of the jury before it retires to consider its verdict. Elderd v. U. S. (C. C. A.) 44 F.(2d) 170.

There is some qualification of this general rule where prejudicial error is obvious in a criminal ease, and a failure to consider such error would result in a miscarriage of justice. An appellate court should of its own motion recognize and consider such errors. The reason for this qualification of tho general rule is that it is the duty of the courts to give protection against unlawful deprivation of liberty. Danaher v. U. S. (C. C. A.) 39 F.(2d) 325.

It is not the duty of appellate courts to recognize merely technical errors that have not resulted in a miscarriage of justice. In the ease of Blair et al. v. U. S., 32 F.(2d) 130, 134 (8 C. C. A.) the court held: “Some objection is urg-ed to the charge, but it refers to « matter which is not vital, but only incidental, and so, since no objection was made and no exception taken to the charge, we are not bound to notice it.”

The trial of this ease required three weeks in time and involved a largo number of defendants. It is extremely difficult to try such cases. The practice of submitting to a jury in one trial the question of the guilt of a large number of persons, where the testimony to each is different, was properly condemned by this court in Marcante et al. v. United States, supra. We are of the opinion, however, in the present case, that upon the whole record the defendants were accorded a fair and impartial trial, and the errors, if any committed, were only incidental.

The case is affirmed as to all the appellants.

LEWIS, Circuit Judge

(dissenting).

In this case one of the appellants, Motsen-booher, was sentenced to two years imprisonment and to pay a fine of $1,000. Each of the other six was sentenced to eighteen months imprisonment and two of them to pay fines of $500. The indictment charged appellants and ninety-five'others named, several of them women and others whose names were unknown to the Grand Jurors, conspired and agreed together and each with the other to commit offenses against the United States in that they would violate the National Prohibition Act (27 USCA) in unlawfully manufacturing, possessing, transporting, selling, and giving away intoxicating liquors, to-wit, beer, whis-ky, and alcohol; and that said unlawful conspiracy continued from October 1, 1926, to September 20, 1929. Twenty-six overt -acts are set up as having been done by one or more' conspirators in pursuance of and to effect the object of the conspiracy. The first overt act in time, as charged, was on June 25* 1927.

Violations of the National Prohibition Act were flagrant, widespread, long continued, and in the open. Intoxicants were sold in drug stores, restaurants, automobile filling stations, cigar stores, pool halls, speak-easies, dance halls, etc. by men and women. Innumerable convictions for violations of the Prohibition Law could have been obtained easily for manufacture, transportation, sale, and possession. But the prosecution adopted the more difficult course of trying to encompass the whole situation by charging a conspiracy. That offense is defined by section 88, title 18, U. S. Code (18 USCA § 88): "If two or more persons conspire either} to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or ■both.”

The prosecution to sustain the charge that the conspiracy was formed ealled Ruth Morgan May as a witness. She testifiéd that she, Oscar Motley, a deputy sheriff, one Adam-son, and Duce Baron met one evening in November or December, 1926, in back of Keys’ drug store in Earlsboro, and organized a whis-ky "line” in Earlsboro; that Baron said to Motley, “I don’t see any reason why we ean’t make money out of this. Everything seems to be going along fairly well.” That Motley said, “We will see you at a later date.” That witness and Motley talked the matter over and agreed it would be the very thing to do to make money, and the next day they went to Teeumseh and saw Frank Fox, the sheriff; that after Motley talked with Fox about it, Fox said, “That will be all right with me”; and she and Motley went back to Earlsboro, Fox got busy on the whisky “line” and got everything organized. They agreed on a certain price for whisky, $10 a gallon, and when the beer season opened up it was to be $6 per ease. Roy Grace, Marion Fuller, and Red Borders were to have charge of the collections ; that she and Motley made some of the collections from those selling intoxicants; that they divided the collections into three parts, the county and the city and then Motley held out a part of it. She turned over the city’s part to the mayor. That the county’s part went to Fox, the sheriff, and Pittman, the county attorney. She produced accounts which she testified she kept at the direction of Motley showing sums to be paid to the parties that have been named, also to one Bill Rig-ney; also accounts showing from whom and the amounts collected from time to time from those who she testified were selling intoxicants. This constituted an unlawful conspiracy expressly proven.

But the prosecution then eálled Knap-penberger, mayor of Earlsboro, and he testified that along in December, 1926, Marion Fuller, chief of police, came to him and said, “Let’s get some money from these joints. We can collect off of these joints, and nobody will be none the wiser, and get this money.” The conversation was in the mayor’s office. The witness finally agreed with Fuller, the latter was to do the collecting; that Fuller went ahead and collected from the joints where intoxicants were being sold charging them $5 to $10 per week for protection as far as) the city police were concerned. They raided anyone who didn’t pay what they thought was enough. He gave the names of a number of persons who were selling intoxicants and from whom collections were made. He later found that there was a county “line.” The mayor then went to see Sheriff Fox, and they agreed to cooperate, and the amount to be thereafter collected was left to Motley and Fuller. The city was to get a dollar on each case of beer and a dollar on each gallon of whisky, and the county a like amount. The amount to be collected from retailers was to be divided between the county and city (those who pretended to represent the city and county). Fox, sheriff, and Pittman, county attorney, were supposed to represent the county. Thus tho testimony of Knappenberger was direct proof of the formation of a conspiracy, separate and independent of the conspiracy shown by the testimony of Tiutli Morgan May.

The prosecution then called Clarence Bur-dette as a witness and by him established another and different conspiracy. He testified that late in December, 1928, or early in January, 1929, San Hunnieutt, Barney Lovette, and Jack Dunn came to Mm in bis restaurant at Barlsboro and told Mm they wanted Mm to go to Shawnee; that ihey had it fixed over there so they could get city and county protection ; that they wanted him to move over there and take charge of the wholesale business; that if would cost $1,500 a month to get it. He went to Shawnee in a day or so thereafter and met the three persons named, also John Baugh and Ollie Yoder. The latter was the brother of the chief of police of Shawnee. Frank Stewart had succeeded or was about to succeed Frank Fox as Sheriff of Pottawatomie County, and it was thought necessary to bring him into the agreement. Burdette went to see Stewart, and he became a party. The sum of the understanding between these parties was that Burdette should pay $1,000 monthly for the exclusive right to sell whisky throughout the county to those wlto retailed it. Frank Fox also became a party to this agreement by being designated as the one to whom Burdette would make payments, which was done. Burdette them moved to Shawnee, rented a residence there, and rented -a room in the business section in which he stored whisky in large -quantities, bringing it in in trucks and automobiles, and from that point he distributed it as called for throughout the county.

This, it is observed, is direct proof of another separate conspiracy from those that bad been entered into as shown by the testimony of Ruth Morgan May and Knappenberger. No' two of them were between the same parties. The purpose of the first one was to give protection as far as that could be done to both wholesaler and retailer of intoxicants throughout the county, the purpose of the second one was to give protection only to retailers in Karlsboro, and the one last mentioned only to a named wholesaler throughout the -county. The indictment charged only one conspiracy. It was obviously improper and prejudicial to prove more than one conspiracy in support of tho charge. It was impossible for appellants to know of what conspiracy they were found guilty.

The offense charged in tho indieimeut and defined by the statute consists of two elements, the conspiracy and an overt act or acts by one or more of the conspirators to effect its purpose. The crime is not complete and cannot be committed or prosecuted until after the overt act; and proof of tho two elements is all that is necessary to establish the charge. Hyde v. United States, 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Gas. 1914A, 614; Brown v. Elliott, 225 U. S. 392, 32 S. Ct. 812, 56 L. Ed. 1136; Joplin Mercantile Co. v. United States, 236 U. S. 531, 35 S. Ct. 291, 59 L. Ed. 705. The conspiracy is a different offense from the crime that is tho object of the conspiracy, and appellants were not tried and convicted for committing the latter. A plain case within the statute would bo an agreement between a given number of persons to go into the business of retailing intoxicants in a named town or territory, although each might have a separate part in carrying out the general purpose — some to make arrangement for places of sale, others to procure the necessary help in making the sales, others to provide for thei manufacture or purchase of the intoxicants to- be sold, and others to transport it to the places of sale. But that was not the situation here. When the several conspiracies shown in this record were entered into, sales of intoxicants at speak-easies, pool halls, and other places in the territory of new oil discoveries were being carried on. Tho conspirators did not call the proprietors of these places together, nor so far as tho record shows did they confer with any of them in tho way of inducing them to enter into or continue the business in which they were then engaged. They simply agreed to levy tribute on these retailers, and for that pui pose county officials! or city officials were members of each proven conspiracy, and the conspirators enforced their demands by raiding places that did not make payments as- demanded. It was thus entirely unnecessary that retailers should become member-s of the conspiracy or conspiracies. Some if not all of the appellants were already engaged in violating the Prohibition Law, and those who came in as retailers -after the conspiracies were formed were likewise compelled to accedo to the demands. It is a misconception in principle, to say that merely paying tribute made the retailers parties to the proven conspiracies, or that their yielding constituted proof that they had entered into a conspiracy previously formed. So fas as the record shows they may have yielded only to avoid arrest, without knowledge of an existing conspiracy.' There is no proof that the retailers ' knew how or when or by whom it was determined they were to malte the payments exacted of them. Conceding a separate conspiracy between each retailer and the collector, that does not tend to prove the conspiracy charged.

Of course, one may become a party to a conspiracy after it is formed, and that he has done so may be shown by facts and circumstances as well as by direct proof. As said by this court in Marcante v. United States, 49 F.(2d) 156, 157, he need not know all the details of the plan, but: “He must, however, know the purpose of the conspiracy and agree to become a party to a plan to effectuate that purpose. A conspiracy is bottomed on an agreement to accomplish an illegal act, and without such agreement there can be no conspiracy; a conspiracy ‘is a partnership in criminal purposes.’ ” Again, in Allen v. United States (C. C. A.) 4 F.(2d) 688, 691: “They [the conspirators] may not have previously associated together. One defendant may know but one other member of the conspiracy.- But if, knowing that others have combined to violate the law, a party knowingly co-operates to further the object of the conspiracy, he becomes a party thereto.”

The principle is elementary. There was no direct proof that appellants, except Baugh and Lovette, who were present at the Shawnee conspiracy, knew of the formation of any of these conspiracies. Motsenboeher never paid' anything for protection; Where an incriminating fact is sokght to be established by circumstantial proof, that proof to be sufficient for the intended purpose must exclude every other reasonable hypothesis than that of the existence of the incriminating fact. I think there was no such proof in this case. There is another established principle in criminal law — when two inferences are each reasonably dedueible from proof, one! against a defendant and the other in his favor, the latter must be accepted. Those who were engaged in selling intoxicants at retail probably knew that county and city officials were interested in demands of contribution from them. Mobley, deputy sheriff, and Fuller, chief of police, made some of these collections. They likely knew that they would be arrested and their places raided by- local officers, if they did not pay what was demanded. Is it not just as reasonable to infer that they would have yielded and did yield without knowledge of any of the proven conspiracies as with knowledge thereof? And, of course, without such knowledge, express or implied, they did not and could not become members of either of the proven conspiracies. Dahly v. United States (C. C. A.) 50 F.(2d) 37; Dickerson v. United States (C. C. A.) 18 F.(2d) 887; Young v. United States (C. C. A.) 48 F.(2d) 26; Niederluecke v. United States (C. C. A.) 21 F.(2d) 511; McLaughlin v. United States (C. C. A.) 26 F.(2d) 1. And so I conclude the judgments as to all appellants should be reversed.  