
    No. 322
    GREEN et. v. UNITED STATES
    U. S. Appeals, 6th Circuit
    Nos. 4329-4331.
    Decided July 3, 1925
    661. INTOXICATING LIQUORS — 1. Mere transportation of does not constitute a nuisance.
    2.Fact that liquor of a wholly different kind is found in home of one of the defendants, is not indication of guilt under count of unlawful possession which was not intended to charge such possession.
    Attorneys — D. L. Sears, Toledo, and A. E. Bernsteen, Cleveland, for U. S.
   PER CURIAM.

These cases originated in the District Court for the Western Division of the Northern District of Ohio and were criminal prosecutions against Charles Green and wife, and Rubi Cohn. The defendants were charged with and convicted of conspiracy to violate the National Prohibition Law;, unlawful possession of five gallons of whisky; unlawful transportation; and maintaining a nuisance.

Evidence was offered tending to prove that Cohn was driving Charles Green’s machine while Mrs. Green was seated in the front seat; that Cohn stopped the automobile and took therefrom a five gallon jug of whisky; that federal officers arrested him at this time. Mrs. Green denied all knowledge that whisky was being transported in the car,but claimed that Cohn had borrowed the car to deliver a package, the contents of which were unknown to her; and that she had gone along for the ride.

A half gallon of whisky was found upon search of Green’s home which was taken possession of by the officer in charge but which had wholly disappeared at time of the trial. Green upon his return home on the date in question, disclaimed any knowledge of Cohn’s activities or his possession of whisky and stated that he had not entered into any agreement .or conspiracy with him. Error was separately prosecuted by -the defendants and the Circuit Court of Appeals held:

1. The conclusion that Green authorized the use of his automobile by Cohn for any purpose is a mere conjecture not sustained by any substantial evidence and cannot be accepted as a fact proved in the case from which the further inference may be drawn that Green .furnished the automobile in the carrying out of a conspiracy to unlawfully transport intoxicating liquor.
2. The small quantity of intoxicating liquor found in Green’s home does not tend to prove conspiracy since it appears that this was a wholly different kind of whisky intended for use in the home and not for sale or transportation.
3. The jury finding the Green couple guilty of unlawful possession was necessarily based upon the theory that they were parties to the conspiracy and were- participating in the transportation.
4. Treating the whisky found in Green’s home as an indication of guilt under this count by the court, there being no intention to allege such possession, was erroneous.
5. No evidence was offered purporting to prove that the whisky was illegally bartered or sold from the automobile. Mere transportation does not constitute a nuisance.
6. Trial court’s judgment reversed as to Charles Green and wife on all four counts of the indictment, and reversed as to Cohn on the first and fourth counts; District Court to proceed on either the second or third count but not on both, as the government may elect.  