The opinion
On Rehearing.
McDERMOTT, circuit Judge.
A rehearing was granted as to Gordon Hays, to give the parties an opportunity to explore more fully tho question of tho sufficiency of tho evidence to sustain the conviction. We have again critically examined this confusing record.
The record discloses ample proof that Ilays and Parnell engaged in the operation of a. still on the Tidwell Farm, and thereby conspired to violate the prohibitory laws in that manner. The evidence- also discloses that Parnell and the proprietors of many other stills in Tillman county were in a conspiracy to violate the prohibitory laws under the protection of county officers, bought and paid for. The evidence thus discloses a countywide conspiracy, involving the owners and operators of many stills, and many of the county officers; and numerous smaller conspiracies to operate particular stills.
The conspiracy charged in the indictment in this ease is the county-wide conspiracy. The conspiracy charged must be proven. Marcante v. United States (C. C. A. 10) 49 F.(2d) 156 . The question then is whether thero is sufficient evidence to connect Hays with the county-wide conspiracy.
This question in turn resolves itself into tho question of whether Hays was a partner of P'amell, or whether he was an employee at the still. If he was a partner of Parnell in the enterprise, there would bo justification for a finding that he was a member of tho county-wide conspiracy, although the dealings with other members of the conspiracy were carried on by Parnell; for it would be a fair deduction, from the fact of partnership, that each member knew that a part of the partnership revenue was being paid for protection, and acquiesced therein. If, on the other hand, Ilays was but an employee at tho still, such employment would not support a finding that he was a member of the countywide conspiracy. If the owners of a half dozen stills conspired to purchase protection from the county officers, it is not reasonable to assume that they took into their'confidence, and into the conspiracy, all of the employees at each still.
The evidence in this case discloses the following facts: Hays helped construct and op-ei-ate the still on the Tidwell Farm. With one Slade, ho became a surety on the bail bond of Jake Strieber, who was charged with the violation of tho prohibitory liquor laws; he, with Parnell and ono Muse, was also a surety on tho bond of Jake Bock who was interested in the Tidwell still, and was activo in making bond for a negro named Cuba, who had been employed at the still, both charged with a violation of the liquor laws. Ituch, tho county attorney of Tillman county, and one of the defendants, and Walls, a deputy sheriff, met Parnell and Hays in Chiekasha. Walls testified they had a conversation, but said ho did not hear what was said between Hays and Ruch. A part of that conversation dealt with the conspiracy, hut the roeor'd does not disclose that Hays heard it.
This evidence is consistent with the theory that Parnell and Hays were partners. It is jnst as consistent with the theory that Hays was merely an employee at the still. As Judge Cotteral said in the majority opinion originally filed in this case, “It is true Hays might have been a mere employee at the still, or a visitor or patron there, and he might have been a mere friend of Cuba- in need.” A critical examination of tho record sheds nó light upon tho vital question of tho relationship of Hays and Parnell. If Parnell and he were partners in the ownership and operation of the still on the Tidwell Farm, tho jury might reasonably conclude that both were members of the county-wide conspiracy charged. If, on the other hand, Hays was merely an employee, no such conclusion could fairly bo drawn. The facts being consistent with the theory that Hays was either a partner or an employee, tho case- falls within tho settled rule that where the circumstances aro as consistent with innocence as with guilt, a motion for a directed verdict should bo sustained. McClintock v. United States (C. C. A. 10) 60 F.(2d) 839 ; Eierman v. United States (C. C. A. 10) 46 F.(2d) 46 ; Leslie v. United States (C. C. A. 10) 43 F.(2d) 288 .
We conclude therefore that tho court erred in refusing to direct a verdict in favor of Hays, and the former opinion is modified in this respect, but in this respect only. The judgment against Hays is accordingly reversed.
COTTERAL, Circuit Judge, dissents.