283 F2d 244 Padgett v. United States

283 F.2d 244

Elza P. PADGETT and Morris Miller, Appellants,
UNITED STATES of America, Appellee.

No. 18193.

United States Court of Appeals Fifth Circuit.

Oct. 20, 1960.
Rehearing Denied Nov. 17, 1960.

Clyde W. Atkinson, Walter J. Smith, Tallahassee, Fla., for appellant.

Wilfred C. Varn, U.S. Atty., Edward L. Stahley, Asst. U.S. Atty., Tallahassee, Fla., for appellee.

Before TUTTLE, JONES and BROWN, Circuit Judges.


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The appellants and others were convicted on a charge of conspiring to violate the laws relating to the unlawful making and selling of non-tax-paid liquor.


Both appellants assert that error was committed in receiving in evidence testimony as to statements said to have been made by a member of the conspiracy at times and places when and where the appellants were not present. Delaney v. United States, 263 U.S. 586, 44 S.Ct. 206, 68 L.Ed. 462, requires a holding that no error was committed.


The appellant Miller asserts that the evidence showed that there were four stills and a separate conspiracy with respect to the operation of each of them resulting, as to him, in a variance between the indictment and the proof. We find no necessity for a recital of the evidence that was adduced at the trial. The case calls for an application of the statement that,


'Under the evidence in this case, we think that it was for the jury to say whether there was any conspiracy and if so, whether one or more than one. If more than one conspiracy was proved, of at least one of which the appellant was guilty, it is clear that there was no variance affecting his substantial rights.' Jolley v. United States, 5 Cir., 1956, 232 F.2d 83, 88.


No error or variance which affects the substantial rights of the appellants being shown, the judgment of the district court is