The opinion
PHILLIPS, Circuit Judge
(dissenting).
I respectfully dissent from the affirmance as to Hays. There is no direct evidence connecting him with the conspiracy, and the circumstantial evidence that he helped to construct the still o.n the Tidwell farm and thereafter on several occasions was with Parnell at the building where the still was located was not, in my opinion, sufficient to take the ease to the jury.
John C. Bellah made arrangements with Walls for Bock and Parnell to operate the still. Bock and Parnell entered into an agreement with Tidwell for the location of a still on the Tidwell farm. The still was known as the Boek-Parnell still. It is significant that Hays was not mentioned or in any wise connected with the transaction which led up to the location of the still on the Tidwell farm. The reasonable inference from all the evidence is that he had no interest in the still, and was connected with it in the capacity of an employee only.
But if, from the circumstances that Hays helped to construct the still and on several occasions thereafter was at the still with Parnell, it could be inferred that Hays was a co-owner with Bock and Parnell, it could not be inferred from the inference of ownership that ho was a party to the conspiracy, because a presumption of fact cannot be based on a presumption of fact — an inference cannot be drawn from an inference. Brady v. United States (C. C. A. 8) 24 F.(2d) 399, 403, 404 ; United States v. Ross, 92 U. S. 281, 283 , 23 L. Ed. 707 ; Manning v. Insurance Company, 100 U. S. 693, 697-699 , 25 L. Ed. 761 ; Looney v. Metropolitan R. R. Co., 200 U. S. 480, 488 , 26 S. Ct. 303 , 50 L. Ed. 564 .
It should be kept in mind that the conspiracy charged was not one between Bock, Parnell, Hays, and Tidwell to manufacture intoxicating liquor, but a larger conspiracy, county-wide in its scope, and that the Government was required to prove the comprehensive conspiracy charged in the indictment. Marcante v. United States (C. C. A. 10) 49 F.(2d) 156 .
Rueh, Wages, Walls, and Rogers were the original parties to the conspiracy charged. From time to time others joined in and became parties to such conspiracy. It was incumbent upon the Government to prove that Hays became a party thereto. While the proof may have been sufficient to connect *329 Ilays with a smaller conspiracy, it is my opinion that it wholly failed to connect him with the larger conspiracy charged in the indictment.