Full opinion text
PER CURIAM. Conspiracy may be established by proof of concert of action in the commission of the illegal act, or other facts and circumstances, from which the natural inference arises that the unlawful overt act was in furtherance of a common design, intent, and purpose of the alleged conspirators (Williams v. U. S. [C .C. A. 6], 3 F. [2d] 933), yet the facts proven must be of such a character that, in connection with all explanations given, the jury could rightly think them inconsistent with innocence. Green was not present at the time Mrs. Giteen and Cohn were arrested. No witness testified tha t Green had entered into a conspiracy with his wife and Cohn to sell, possess, or transport intoxicating liquor in violation of law, and no oral evidence ivas offered on the part of of the government tending to establish concert of action, or other facts and circumstances from which such natural inference might he drawn, other than that he was the husband of Mrs. Green and the owner of the automobile in which this intoxicating liquor was transported. It follows that the conclusion that Green authorized the use of his automobile by Cohn that evening for any purpose is a mere conjecture, not sustained by any substantial evidence, and hence cannot be accepted as a fact proven in the case, from which the further inference may he drawn that the automobile was furnished by Green in furtherance of a conspiracy, or with knowledge, that it was to be used for the unlawful transportation of intoxicating liq-our. It is said however, that the further fact that a small quantity of intoxicating liquor was found in the Green home tends to prove this conspiracy. With this contention we cannot agree.' It appears from the evidence that this was a wholly different kind of whisky intended for use in the home, and not for sale or transportation, and, as stated in the charge of,the court, Cohn had no connection therewith. The conclusion that Green was not a party to the conspiracy charged in this indictment materially affects the natural inferences to be drawn from the facts actually proven as to Mrs. Green. There is no proof substantially tending to show a preconcert of plan with Cohn, constituting participation in the. conspiracy, or that the liquor in the automobile was at'any time in her possession. Possession connotes control, and transportation presupposes possession. Supplying means of transportation may constitute participation therein, but mere presence in the automobile (the only fact shown as to Mrs. Green), we do not think, is such a substantial circumstance, under all the facts of this specific ease, as could reasonably be considered as overcoming the presumption of innocence. Nor is it shown that Mrs. Green overturned the jug in the automobile. In order to predicate guilty, knowledge by Mrs. Green upon this additional circumstance, and thus to infer participation. by her, such circumstance must he proved, and not be mere conjecture unsupported by substantial evidence. There would therefore seem to be no substantial evidencé of Mrs. Green’s actual participation in the • possession charged by count 2, or in the transportation charged by count 3, of the indictment.' 'It also appears that count 2 of this indictment is directed to the possession of whisky found and seized by the bffieer at the time Cohn and Mrs. Green were arrested, and not to any whisky found in the Green home. In respect to this count the court erred in its charge to the jury that the second count of the indictment “charges these two people with unlawful possession — just Green and his wife, and, so far as this case goes, the evidence on that count applies equally to husband and wife. * * * There is no defense, as the court sees, so far as the two Greens are concerned, to the second count, .and you should return a verdict of guilty of possession on the second count against them.” The first overt act charged in the first count of the indictment did charge possession by Green and his wife, but the second count of the indictment charged Green, Mrs. Green, and Cohn with unlawful possession. The jury found all three guilty upon this count. The verdict of guilty as to Green and wife upon this second count must necessarily have been based upon the theory that Green and his wife were parties to this conspiracy and were participating in the transportation. It was error for the court to treat the whisky admittedly found in the Green home as being a demonstration of guilt under this count, which -was not intended to allege such possession, and the point was sufficiently reserved by specific exceptions at the close of the charge. The only- evidence offered, tending to prove that, these defendants, or either of them, were guilty of maintaining a nuisance under the fourth count of the indietinent, was the fact that this “moonshine” whisky was transported in this automobile upon this one occasion. No evidence whatever was offered tending to prove that liquor was illegally bartered or sold from this automobile. Mere transportation does not constitute a nuisance under section.21, title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138/20). Ash v. U. S. (C. C. A.) 299 F. 277; Hattner v. U. S. (C. C. A.) 293 F. 381; U. S. v. Emmons et al. (D. C.) 3 F.(2d) 503; Miller v. U. S. (C. C. A.) 300 F. 529, 537; Reynolds v. U. S. (C. C. A.) 282 F. 258. The motion for a directed verdict should have been sustained as to Green and Mrs. Green on all counts of this indictment, ,and as to Rubi Cohn on the first and fourth counts. For the reasons stated, the judgment of the trial court is reversed as to Charles Green and Mrs. Charles Green on all four counts of the indictment, and reversed as to Rubi Cohn on the first and fourth counts of the indictment, and the cause is remanded to the district court for the resentenee of Rubi Cohn on either the second or third count of the indictment as the government may elect, but not on both (Reynolds v. U. S. [C. C. A.] 280 -F. 1; Mifier v. TJ. S. [C. C. A.] 300 F. 529), and for new trial of Charles ■ Green, Mrs. Charles Green, and Rubi Cohn on the first count of the indictment, and new trial of Charles Green and Mrs. Charles Green on the second and third counts of the indictment. '