Von Patzoll v. United States ( 1947 )

BRATTON, Circuit Judge

(dissenting).

The first count in the information charged that appellants transported approximately 29 cases of intoxicating liquor from Texas into Oklahoma, a dry state; and the second count charged that they assisted in such transportation. Tried before the court without a jury, appellants were acquitted on the first count and found guilty on the second. I think the facts and circumstances established at the trial show beyond a reasonable doubt that appellants, acting together and in concert as principals, transported the liquor. I am unable to find in the record any sustainable basis for the conclusion that some other person actually transported the liquor and that appellants merely assisted him in doing so.

We held quite recently in a case which seems to be indistinguishably similar to this one that evidence of that kind is not sufficient to support a charge of assisting in the transportation of liquor. Morgan v. United States, 10 Cir., 159 F.2d 85. On the authority of that case, I think the judgment should be reversed.