ELZA P. PADGETT AND MORRIS MILLER, APPELLANTS,
v.
UNITED STATES OF AMERICA, APPELLEE
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The court held that admitting statements of a co-conspirator made outside the appellants' presence was not error, and that the evidence did not show a fatal variance between the indictment and proof.
Appellants were convicted of conspiring to violate laws regarding non-tax-paid liquor. They appealed, arguing that statements made by a co-conspirator…
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PER CURIAM.
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.” Jol-ley 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
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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United States v. Dryden, 423 F.2d 1175 (5th Cir. 1970)
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Robinson v. United States, 333 F.2d 950 (5th Cir. 1964)
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United States v. Murphy, 290 F.2d 573 (3d Cir. 1961)
Authorities Cited
- Delaney v. United States, 263 U.S. 586 (U.S. 1924)
- Jolley v. United States, 232 F.2d 83 (5th Cir. 1956)