HOLMES, Circuit Judge.
These appellants were convicted of conspiring to violate the internal revenue laws relating to intoxicating liquor. They seek to reverse the judgment upon the grounds that the evidence was insufficient to sustain the verdict, and that prejudicial procedural errors were committed in the course of the trial.
The record discloses that these appellants moved for a directed verdict at the close of the Government's case, but thereafter they introduced evidence in their own behalf, and failed to renew their motion at the close of all the evidence. The failure to renew operated to waive the benefit of the motion made,
The other questions raised with respect to rulings upon the admissibility of evidence and the charge of the court have been reviewed and are without merit.
The judgment is affirmed.
HUTCHESON, Circuit Judge (concurring in part and dissenting in part).
I concur in the conclusion of the majority that the record contains ample evidence to support the judgment as to the Ansleys; I dissent from the conclusion that it does as to Bernice Miller Lewis. The offense of which she was convicted was conspiracy to commit and not the commission of a substantive offense. There was proof connecting her with one of the overt acts, the sale by Lewis to the informer. Agreement, however, is the gist of the offense of conspiracy. Overt acts are no part of the offense, and the only effect of their requirement is to afford "a locus pœnitentiæ, so that before the act done, either one or all of the parties may abandon their design." United States v. Britton, 108 U.S. 199, 2 S.Ct. 531, 534, 27 L.Ed. 698, as quoted in United States v. Manton, 2 Cir., 107 F.2d 834. There is absolutely no evidence that she knew of or was a party to any agreement between Lewis and Ansley. She testified positively that she knew nothing of it. Nobody testified that she did. She could not be guilty of conspiracy with her husband alone, Dawson v. United States, 9 Cir., 10 F.2d 106, because conspiracy is a criminal relationship which at common law a married woman is incapable of sustaining with her husband. Potter v. Motor Lines, D.C., 57 F.2d 313. More, if a wife act in company with her husband in the commission of a felony other than treason or homicide, it is conclusively presumed that she acted under his coercion and is consequently without any guilty intent, United States Trust Co. of New York v. Sedgwick, 97 U.S. 304, 24 L.Ed. 954. Cf. Haning v. United States, 8 Cir., 59 F.2d 942. The evidence shows that the husband of this woman was a convicted murderer and a whiskey operator and given to heavy drinking. Mrs. Lewis testified: "After we were married, Mr. Lewis told me he was engaged in the liquor business. I did not participate in it. I did not let him have