Carl MOSCHETTI and Marlon S. Butler, Appellants, v. UNITED STATES of America, Appellee

Carl MOSCHETTI and Marlon S. Butler, Appellants, v. UNITED STATES of America, Appellee. No. 3656. Circuit Court of Appeals, Fourth Circuit. April 21, 1934. W. L. Devany; Jr., of Norfolk, Va., for appellants. Sterling Hutcheson, U. S. Atty., of Norfolk, Va. (H. H. Holt, Jr., Asst. U. S. Atty., of Norfolk, Va., on the brief), for the United States. Before PARKER, NORTHCOTT, and SOPER, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. The appellant Butler was convicted under an indictment charging him with possessing, concealing, and passing counterfeit money and conspiracy to possess, conceal, and pass same. The defendant Moschetti was convicted only under the conspiracy count.. On this appeal Butler contends that there was error in permitting the jury to retire and reconsider its verdict and convict him under all four counts of the indictment after it had reported that it found all defendants guilty of conspiracy. Moschetti contends that the evidence was insufficient to connect him with the conspiracy and that verdict in his favor should have been directed. The contentions of Butler are so entirely lacking in merit as not to warrant discussion, but a careful examination of the record convinces us that the position of Moschetti was well taken and that his motion for directed verdict should have been allowed. There was no evidence connecting him with the conspiracy charged in the indictment. The circumstances relied on were entirely consistent with innocence, and the verdict of guilty could have rested only upon suspicion and speculation. The judgment appealed from will accordingly be reversed in so far as it relates to the defendant Mosehetti and affirmed in so far as it relates to the defendant Butler. Affirmed in part. Reversed in part.