The opinion of the court was delivered by: KRAFT
Of the nineteen defendants indicted in this proceeding nine pleaded guilty; the charges against three were dismissed by the Court; one was acquitted by the jury; the remaining six were found guilty on the conspiracy count; and one of the six, Mamie Kensil, was found guilty on the substantive counts.
Now before us are motions for judgment of acquittal, or, in the alternative, for a new trial, filed by the six defendants found guilty by the jury.
The indictment is in four counts. The first count charged all defendants with conspiracy (1) to engage in and carry on the business of a distiller without having given the bond required by law; (2) to possess and control a still and distilling apparatus without legally registering the same; (3) to make and ferment mash fit for distillation on premises other than an authorized distillery; (4) to transport, possess, buy, sell and transfer distilled spirits in immediate containers not stamped to evidence the determination of the tax. The remaining counts are substantive in nature and charge certain of the defendants with the same overt acts as are alleged to have been the first three objects of the conspiracy.
In considering the motions for judgment of acquittal as to each defendant, it is incumbent upon us to make a careful examination of the evidence to ascertain 'whether all the pieces of evidence against the defendant, taken together, make a strong enough case to let a jury find him guilty beyond a reasonable doubt.' United States v. Allard, 3 Cir., 1957, 240 F.2d 840, 841. The verdict must be sustained if there is substantial evidence, taking the view most favorable to thE government, to support it. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680.
On February 9, 1960, agents of the Alcohol and Tobacco Tax Unit raided an illicit still on premises known as the Old Schmidt Farm, on Hunt Road, Bedminster Township, Bucks County, Pa. The uncontradicted evidence established that several of the defendants were actively engaged in the operation of the still from about November 1, 1959, to the day of the raid.
The Government's case against Mrs. Kensil rests largely upon the testimony of Lewis Hiatt, named, but not indicted, as a co-conspirator. Hiatt's testimony may be briefly summarized. In the latter part of 1959, Hiatt was employed by Edward Kensil 'to take supplies and finished product to and from an illicit still.' (Edward Kensil, husband of Mamie Kensil, was a prime mover in the illegal enterprise and pleaded guilty during the trial). On or about October 20, 1959, Mr. and Mrs. Kensil and Hiatt left the Kensil home in Philadelphia, in Kensil's car, to go to the Schmidt Farm. Hiatt testified that, during the trip, Mrs. Kensil 'told me that I had to be very careful in my travels to and from the place so that I wouldn't be seen entering it or leaving it.' On their arrival at the farm, Mrs. Kensil went into the house and Kensil and Hiatt proceeded to the barn, which was 150 to 200 feet from the house. Several of the defendants were working in the barn and Kensil pointed out the 'pot' and the 'thumper' and explained their purposes. On the way back to Philadelphia that evening, Mrs. Kensil stated that 'she didn't see how they expected a joint to operate without drops or vehicles,' and again cautioned Hiatt that he would have to be very careful going 'to and from the place.' In the course of a conversation at the Kensil home that same evening, Kensil further explained to Hiatt 'the workings of a still, and how to pick up supplies and deliver them, and how to take the goods out and dispose of them.' Mrs. Kensil was present at this conversation and said to Hiatt, 'you listen to Eddie. He knows what he is doing.'
Mr. and Mrs. Kensil, together with Hiatt, went to the still site the following day, again in Kensil's automobile. Mrs. Kensil went into the house while Hiatt and Kensil repaired to the barn. The same defendants were in the barn as on the previous visit, and one of them was engaged in erecting vats. Hiatt testified that Kensil 'further explained the mash and all to me.'
Hiatt went to the Kensil home the next morning and Kensil stated that to complete the erection of the still they would need bricks 'for a fire base to erect the boiler upon, and some sort of a drainage system for what they call slop.' Mrs. Kensil was present and joined in the conversation. Mr. and Mrs. Kensil and Hiatt then proceeded to the still site in Kensil's automobile, and Kensil 'talked further on getting the still erected so it would operate, and the disposition of the goods, and the use of vehicles and drops.' Mrs. Kensil joined in this conversation, and again warned Hiatt to be 'careful'. Mrs. Kensil stayed in the house, while Kensil and Hiatt worked in the barn.
Hiatt testified that he returned to the still site with Kensil, in the latter's car, every day until the 4th or 5th of November (1959), and that Mrs. Kensil was with them 'with the exception of a couple of times.'
On an occasion when Hiatt was about to remove an oil 'burner' from the still site, Mrs. Kensil told him several times to be sure and file off 'all the numbers and identifying marks and emblems.'
In the latter part of January 1960, according to Hiatt, Mrs. Kensil was in the automobile when Kensil drove him to Rising Sun, Maryland, to pick up supplies for the still.
In addition, there was testimony by Robert Kennedy, who leased the still premises and who pleaded guilty, that Mrs. Kensil was present during the discussion about the still between the witness and Kensil at the latter's home in Philadelphia.
Counsel for Mrs. Kensil contends that, granting the evidence established the existence of a conspiracy, the Government has failed to show that Mrs. Kensil was at any time a member of the conspiracy. We disagree. The elements necessary to constitute one a conspirator were well ...