Opinion · Court of Appeals for the Sixth Circuit

Westfall v. United States

Westfall v. United States, 2 F.2d 973 (6th Cir. 1924)

Type
Opinion
Court
Court of Appeals for the Sixth Circuit
Jurisdiction
Federal
Date
1924-12-02
Topic
general

PER CURIAM. Complaint is made that, in this prosecution for conspiracy, evidence was received of overt acts other than those specified in the, indictment. The record shows no objection or exception. We are also told that for lack of necessary proof a verdict of acquittal should have been directed; but, again, the record shows no motion for a directed verdict, nor any objection or exception raising that point. It is the settled rule in this court that section 269 of the Judicial Code, as amended (Comp.

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4 opinions
WESTFALL v. UNITED STATES,2 F.2d 973(6th Cir. 1924)
WESTFALL v. UNITED STATES. MERSEL v. SAME. TANSEY v. SAME.
Nos. 4116-4118.
Circuit Court of Appeals, Sixth Circuit.
December 2, 1924.
In Error to the District Court of the United States for the Western Division of the Southern District of Ohio; Smith Hickenlooper, Judge.

Ella Westfall, Jessie Mersel, and Nettie Tansey were convicted of conspiracy, and they severally bring error. Judgments affirmed.
Hugh Nichols, of Cincinnati, Ohio (Nichols, Morrill, Stewart Ginter, of Cincinnati, Ohio, on the brief), for plaintiffs in error.

A. Lee Beatty, Asst. U.S. Atty., of Cincinnati, Ohio (Harry A. Abrams, of Cincinnati, Ohio, on the brief), for the United States.
Before DENISON, MACK, and DONAHUE, Circuit Judges.
PER CURIAM.
Complaint is made that, in this prosecution for conspiracy, evidence was received of overt acts other than those specified in the indictment. The record shows no objection or exception.

We are also told that for lack of necessary proof a verdict of acquittal should have been directed; but, again, the record shows no motion for a directed verdict, nor any objection or exception raising that point. It is the settled rule in this court that section 269 of the Judicial Code, as amended (Comp. St. Ann. Supp. 1919, § 1246), was not intended to promote reversals by removing the necessity for any rulingPage 974by the court below upon the point before it can be raised on review, but that, just as before the amendment, in such a case we reverse only where it appears that there had been a plain and vital error, indicating a miscarriage of justice in the result. Robilio v. U.S., 291 F. 975, 980.

We see no such error. Evidence of any act tending to show the conspiracy was relevant, though only one act need be alleged. The inference that the separate sales made by the individual defendants were pursuant to a precedent common plan, and therefore showed a conspiracy, rather than sales merely, was not a necessary inference, but was one which the jury might rightfully draw from all the circumstances. Whether the sales occurred depends solely on the respective credibility of the witnesses, and we cannot review the weight of evidence.

The judgment in each of the three cases is affirmed.Page 1014