251 F2d 339 Dean v. United States

251 F.2d 339

Will C. DEAN, Appellant,
v.
UNITED STATES of America, Appellee.

No. 16762.

United States Court of Appeals Fifth Circuit.

Jan. 24, 1958, Rehearing Denied March 18, 1958.

Jas. W. Arnold, Athens, Ga., for appellant.

Robert B. Thompson, Asst. U.S. Atty., Frank O. Evans, U.S. Atty., Macon, Ga., for appellee.

Before HUTCHESON, Chief Judge, TUTTLE, Circuit Judge, and HANNAY, District Judge.

PER CURIAM.

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1

This appeal is from a conviction of appellant on a conspiracy count charging him and several other named and divers other unnamed conspirators, with conspiring among other things, to unlawfully engage in the business of distilling spirituous liquors; to unlawfully possess, transport, conceal and sell distilled nontax-paid spirits, and to carry on the business of wholesale liquor dealers in spirituous liquors without paying the required tax.

2

Appellant attacks the verdict on two grounds; first, that instead of a single conspiracy, as charged, two separate conspiracies were proven, in each of which some of the named conspirators participated; second, that there was an absence of sufficient evidence of Dean's participation in either conspiracy to warrant the jury's finding of guilt as to him.

3

Whether one or two conspiracies existed was a question of fact. We find that there was ample unity of action and identity of participants to warrant a finding that there existed a single conspiracy centering around the Stephens Service Station in Jackson County, Georgia, and that appellant Dean, although not one of the moving participants, nevertheless did actively engage in sufficient of the activities there to be found guilty as a conspirator. His proven conduct, for instance, would warrant the inference that at some time during the first half of the year 1955 he agreed with the other more active conspirators that if they would make the liquor and haul it to Clarke County, he would sell substantial quantities of it. This would be enough to make him a conspirator. The jury also had sufficient evidence to find him guilty of at least one overt act.

4

The judgment is affirmed.