
    YOUNG et al. v. UNITED STATES.
    No. 5959.
    Circuit Court of Appeals, Fifth Circuit.
    April 10, 1931.
    WALKER, Circuit Judge, dissenting.
    John B. McNamara, of Waco, Tex., Edwin H. Grace, of New Orleans, La Sanford of Galveston, Tex and A. L. Cur tis, of Belton, Tex. Lovett, of Corsicana, Tex., on the brief), for appellants,
    John D. Hartman, U. S. Atty., of San Antonio, Tex.
    Before BRYAN, FOSTER, and WALKER, Circuit Judges.
   BRYAN, Circuit Judge.

The indictment in this case charges a conspiracy to sell, and possess for sale, utensils and substances, including com chops, sugar, fruit jars, and charred barrels, designed and intended for use in the unlawful manufacture of intoxicating liquor; and to manufacture, possess, sell, and transport intoxicating liquor for beverage purposes. The appellants, McDanid, Young, Coates, Lee, Franklin, and Campbell, were convicted as charged. Evid«nae for,the government tended to show that McBame1’ manger of a wholesale business at Corsicana, Tex sold large quantities of the above articles described m the indictment to Young and Coates, and made deliveries at the village or town of Young, where Young and Coates had adjoining retail stores, with n T ,, . 7 a connecting door, in the same building,

Young and Coates sold the articles purchased from McDaniel at retail. Lee, Franklin, and Campbell were among their customérs, and each of them made individual purehases but ther0 was n(> proo£ that tbey wer0 , T, , ,, , acting m concert. It was not directly shown ,, , n .. , J . tbat ^ of the arMes thus sold were used 111 connection with the manufacture of liquor, although there were many illicit distilleries in the neighborhood. The most that can be' claimed by the government is that the eircumstantial evidence was sufficient to show that McDaniel, Young, and Coates knew that the articles in question were being bought from Young and Coates by persons who intended to use them in connection with the unlawful manufacture of liquor.

are °Plmon £5mt tbis evldmf was ^sufficient to prove the conspiracy alleged. McDaniel, the seller, could not have been a c0conspirator with Young and Coates, the purchasers, upon proof simply that he made sales to them; and in turn Young and Coates, whether aeting individually or as partners, could not upon similar proof have been coconspirators with those who purchased from them at retail. There must have been a conspiracy to do something unlawful after the sales were made in order to sustain the indictment. United States v. Katz, 271 U. S. 354, 46 S. Ct. 513, 70 L. Ed. 986. In Edenfield v. United States (C. C. A.) 8 F.(2d) 614, there were three indictments, efh ?ont™S coufte; th® firft count charging a conspiracy to manufacture liq-nor, and the second to manufacture liquor without making a permanent record. Eden-field was convicted and sentenced on both counts of each indictment. The judgment was affirmed in toto by this court in a memorandum opinion, which, while recognizing the principle of law that there must be evidence Beyond proof of sale, stated that “the evidence for the government tended to show that plaintiff in error furnished to his codefendants copper and other materials to be used in making a still, as well as sugar and meal to be used in the manufacture of liquor.” The case was reversed by the Supreme Court because of the conviction on the second set of counts which charged conspiracy to manufacture liquor without making a permanent record, on the authority of the Katz Case, supra; and it was remanded to the district court for resentence on the first counts. 273 U. S. 660, 47 S. Ct. 345, 71 L. Ed. 827. It is to be con-n , ,, o , ,, , ,, ceded. therefore, that the evidence was held , ’ ' r\ . . t. ^ • ,, by the Supreme Court to be sufficient to susj. n i » *i • > , -r> n tam the first count of each indictment. But the record in Edenfield’s Case affirmatively shows, though the memorandum opinion does not, that he not only, made the sales, but, aft-i, , , ... er they were made, that he actively partici- ... . • r.1 .»ii • 1 i.pated in manufacturing the stiffs, m loca mg them m places where it was unlikely that they would be found, and m disposing of the hquor after it was manufactured; and so we held that the jury was authorized “to mfer an agreement to do what was actually done.

There is no similar proof here, but the evidence stops with the sales. The conviction of the sellers cannot be sustained on the ground that they had knowledge of the intention of the purchasers to use the sugar and other articles in connection with the unlawful manufacture of liquor. One cannot be held as a member of a conspiracy upon proof merely that he had knowledge of, or negatively acquiesced in, a crime that was about to be committed; but, in order to fasten guilt upon one accused of being a coeonspirator, it is necessary to prove that he actively partieipated in the conspiracy charged. Bishop’s Criminal Law (9 Ed.) § 633; 5 R. C. L. 1065; McDaniel v. United States (C. C. A.) 24 F. (2d) 303. There was no evidence that Lee, Franklin, and Campbell were acting in concert; for all that appears, each was acting only for himself. The conspiracy charged was not proved against any of the appellants-

The judgment is reversed.

WALKER, Circuit Judge '

(dissenting), '

I am nable to concur in conclusions stated in the foregoimg opinion. There was the foregoing opinion There was evxdence tending to prove that the appellant Mc-Danl®1’ actm? £or a corporation °f which he "as tbe onager, in selling for that corporatlon appeUante Young and Coates large pities of sugar, com chops, p;e pain, fruifs 3™» and cbarr?d bafels> and f trans’ P°rtmg pnd dejivering those articles fre^ently ^ the nighttime, and the appellants Joung and Coate m buying and selling tbose things, acted in concert between themsal!e® and otber appellants for the purpose o£bnngfg about or f aeihtatmgviolations by cha^®d °£ tbe National Prohibition Aet by unlawfully manufacturing, possess- . “d transporting intoxicating liquor. Jbe mdlet“fnt and the evidence showed more £ban concerted action between the sellers and ^m ™lawfulftes- “ that they showed ***** *b! seIlef aüd acted m eof'f with others charged, for the purpose of ex- » ,, , & o, ^ fectmg the unlawful manufacture, posses- • , , ... « . , . ’ . sion, and transportation of intoxicating liquor '

Though such sales in which the applelant McDaniel paticipated and such purchases and sales by appellants Young and Coates , . 1-, , were not in themselves illegal, they were rendered illegal if such pats of a scheme participated in by those thre0 ns and otherg aeeuged to bring. about the unlawful manufaeture, possession, gaJ and transportation of intoxicating liq.uor Tboge things may have been rendered unlawful by the plan or concerted purpose in pursuance of which they were done. They were capable of being designed or done for an unlawful purpose. Danovitz v. United States, 281 U. S. 389, 50 S. Ct. 344, 74 L. Ed. 923. An act, harmless when done by one, may become a public wrong when done by many, acting in concert for an unlawful purpose. Grenada Lumber Co. v. Mississippi, 217 U. S. 433, 30 S. Ct. 535, 54 L. Ed. 826; Bedford, etc., Co. v. Stone Cutters Ass’n, 274 U. S. 37, 54, 47 S. Ct. 522, 71 L. Ed. 916, 54 A. L. R. 791. “No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omissions may be made a step in a criminal plot, and if it is a step in a plot, neither its innocence nor the Constitution is suffieient to prevent tbe punishment of the plot by law.” Aikens v. Wisconsin, 195 U. S. 194, 206, 25 S. Ct. 3, 6, 49 L. Ed. 154. The above-mentioned acts, as evidence adduced tended to prove, being bound together as parts of a plan or concerted scheme to bring about or facilitate violations of the National Prohibition Act (27 USCA), are tainted with the criminality of that plan. Swift & Co. v. United States, 196 U. S. 375, 396, 25 S. Ct. 2,76, 49 L. Ed. 518; Badders v. United States, 240 U. S. 391, 394, 36 S. Ct. 367, 60 L. Ed. 706. The conspiring which evidence tended to prove being directed to violations of the National Prohibition Act, everything done in pursuance of it was illegal, and all participants in the plot or scheme were guilty as conspirators. Ford v. United States, 273 U. S. 593, 620, 47 S. Ct. 531, 71 L. Ed. 793.

The decision in the case of Edenfield v. United States, 273 U. S. 660, 47 S. Ct. 345, 71 L. Ed. 827, had the effeet of affirming a conviction under counts of an indictment , • , , making charges similar to the charge made by the indictment in the instant ease, which charges were supported by evidence which, in my opinion, had no more tendency to support a charge made than the evidence in the instant ease. In that case a reversal was unsuecessfully sought because of the action of the trial court in giving an instruction to the jury to the effeet that, if Edenfield knew that the copper, sugar, meal, ami bran he furnished, in the quantities he furnished, were not usable, so far as he knew, except in the manufacture of liquor or the making of stills, and if he furnished those things with the knowledge that they were to be used for such purposes, then it was for the jury to determine as to whether, when he furnished those things to other persons accused, then knowing that those persons were going to use them in man-ufaeturing the liquor, that would constitute an agreement between him and those persons to violate the law against manufacturing liquor. It seems to me that the decision evidenced by the foregoing opinion is ineonsistent with that part of the decision in the case of Edenfield v. United States, supra, which had the effeet of affirming the conviction under counts of the indictment under which the accused was tried. The opinion in the ease of United States v. Katz, 271 U. S. 354, 46 S. Ct. 513, 70 L. Ed. 986, indicates that a charge of criminal conspiracy cannot properly be based on an agreement between the seller and buyer in a sale made for a criminal purpose, because such an agreement is an essential element of tbe sale itself, and the sale could not make a party to it guilty of a crime other than the one committed by the seller; but that opinion also indicates that the buyer and seller of things used in manufacturing intoxicating liquor properly could be charged with conspiring with others to bring about the unlawful manufacture of such, liquor by using those things, as the substantive offense conspired to be committed has an ingredient in addition to the sale, not requiring the agreement of two persons for its completion. A party to an agreement to bring about the commission of a crime is subject to be charged with criminally conspiring with others, though he was to do nothing in 'furtheranee of the agreement except to sell a thing intended to be used by another in committing the crime which was the object of the agreement.  