SANBORN, Circuit Judge.
The first alleged error of which the defendants below, Earl Haning and Louise Vinciquerra, complain, is that, after all the evidence had been received, the court denied their request to instruct the jury to return a verdict in their favor on the ground that there was no evidence in the case sufficient to sustain a verdict against them. The charge in the indictment under which they were tried was that, on or about the 16th day of October, 1925, they did unlawfully and feloniously conspire with other persons to the grand jury unknown "to unlawfully possess, unlawfully transport, and unlawfully cause to be transported, and to unlawfully sell, in violation of title 2 of the National Prohibition Act (27 USCA § 4 et seq.) intoxicating liquor," fit for beverage purposes; that this conspiracy was to be effected by the means following: "That the said defendants would unlawfully possess and unlawfully transport and cause to be transported and unlawfully sell certain intoxicating liquor * * * in the city of Lincoln, Neb., * * * without first obtaining a permit from the Commissioner of Internal Revenue so to do;" and that on the 17th day of October, 1925, in pursuance of this conspiracy to effect its object, they did possess and transport and cause to be transported in the city of Lincoln about two gallons of moonshine whisky. The defendants pleaded not guilty to this indictment, were tried, and at the close of the trial the court held and charged the jury that the only offense charged in this indictment was the conspiracy; that they could not find either of the defendants guilty as charged in the indictment of this conspiracy, "with divers other persons to the grand jurors unknown," because there was no evidence to that effect; that they could not find either of them guilty of any conspiracy unless each of them agreed and conspired with the other, for one could not conspire alone, and that, unless both conspired to commit the offense, they must acquit both; that the evidence in this case was insufficient to sustain a verdict that the defendants conspired to possess any intoxicating liquor, or that they conspired to sell any; and that "the only part of the conspiracy alleged which is submitted to you is the conspiracy to unlawfully transport without a permit as stated in the indictment."
The only question in this court therefore is, Was the evidence in this case so substantial and sufficient as to sustain the verdict of guilty of this charge of conspiracy? These facts were established. The defendant Haning had been in the service of the United States as a prohibition agent, but had left that occupation about 1923. He lived and had lived for two or three years in the city of Lincoln, Neb., but prior to that time he had lived in Omaha. Louise Vinciquerra lived and had lived for many years in Omaha, and had been acquainted with Haning when he had lived there and since that time. She testified that she lived at 2002 North Forty-Eighth street, Omaha; that on October 17, 1925, she came down from Omaha to Lincoln to see a man in the Scotch Woolen Company, who was making a suit of clothes on her order for her brother; that during the day she went to call on a friend, and about 1 o'clock, as she was returning toward the business portion of the city, she was standing at Thirty-Third street and Randolph street waiting for a street car to go down to the Scotch Woolen Company, when Haning came along, driving a Ford sedan, stopped, and made her get in. She further testified that, after she was in the car and they had traveled some distance, Karl Schmidt, a federal prohibition agent for Nebraska, chased them, and, after running some
So it was that, when this case went to the jury, the only question was whether Mrs. Vinciquerra had conspired or agreed with Haning to transport this two gallons of whisky. The presumption was that she had not. She testified that she did not conspire and did not know he had any whisky in his car when he invited her to get into it and she accepted that invitation. There is stronger evidence of a conspiracy between Haning and Holter to transport this whisky than there is of one between Mrs. Vinciquerra and Haning, for Holter testified he waved to Haning when he saw him coming, that Haning, as soon as he saw him, stopped his car, and he got into the car because Haning expected him to do so. The evidence that Mrs. Vinciquerra broke the jugs had no tendency to prove transportation or her conspiracy to transport, for the breaking of the jugs did not further but prevented the transportation. The fact that Mrs. Vinciquerra accepted Haning's invitation to ride in his car when there was whisky in it was insufficient to prove either that she knew there was whisky in it, much less that she had conspired with Haning to transport it. United States v. Jianole (C. C. A.) 299 F. 496; Stafford et al. v. United States (C. C. A.) 300 F. 540; Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 38 L. Ed. 481; Union Pacific Coal Co. v. United States (C. C. A.) 173 F. 737, 740.
The burden was upon the United States to prove beyond a reasonable doubt that Mrs. Vinciquerra conspired with Mr. Haning to transport this whisky. The legal presumption was that she did not so conspire. When all the substantial evidence is as consistent with innocence as with guilt, it is the duty of the appellate court to reverse a judgment of conviction. Vernon v. United States (C. C. A.) 146 F. 121, 123, 124; Wright v. United States (C. C. A.) 227 F. 855, 857; Edwards v. United States (C. C. A.) 7 F.2d 357, 360; Siden v. United States (C. C. A.) 9 F.2d 241, 244; Ridenour v. United States (C. C. A.) 14 F.2d 888, 893.
The relevant and substantial evidence in this case is not only as consistent, but much more consistent, with the innocence than with the guilt of the defendant Mrs. Vinciquerra of the conspiracy charged in the indictment, and, as Haning could not conspire alone, each of the judgments in this case must be reversed, and the cases must be remanded to the court below, with directions to set aside the verdicts. It is so ordered.