The indictment in this case charges a conspiracy to sell, and possess for sale, utensils and substances, including com chops, sugar, fruit jars, and charred barrels, designed and intended for use in the unlawful manufacture of intoxicating liquor; and to manufacture, possess, sell, and transport intoxicating liquor for beverage purposes. The appellants, McDanid, Young, Coates, Lee, Franklin, and Campbell, were convicted as charged. Evid«nae for,the government tended to show that McBame1’ manger of a wholesale business at Corsicana, Tex sold large quantities of the above articles described m the indictment to Young and Coates, and made deliveries at the village or town of Young, where Young and Coates had adjoining retail stores, with n T ,, . 7 a connecting door, in the same building,
Young and Coates sold the articles purchased from McDaniel at retail. Lee, Franklin, and Campbell were among their customérs, and each of them made individual purehases but ther0 was n(> proo£ that tbey wer0 , T, , ,, , acting m concert. It was not directly shown ,, , n .. , J . tbat ^ of the arMes thus sold were used 111 connection with the manufacture of liquor, although there were many illicit distilleries in the neighborhood. The most that can be' claimed by the government is that the eircumstantial evidence was sufficient to show that McDaniel, Young, and Coates knew that the articles in question were being bought from Young and Coates by persons who intended to use them in connection with the unlawful manufacture of liquor.
are °Plmon £5mt tbis evldmf was ^sufficient to prove the conspiracy alleged. McDaniel, the seller, could not have been a c0conspirator with Young and Coates, the purchasers, upon proof simply that he made sales to them; and in turn Young and Coates, whether aeting individually or as partners, could not upon similar proof have *27been coconspirators with those who purchased from them at retail. There must have been a conspiracy to do something unlawful after the sales were made in order to sustain the indictment. United States v. Katz, 271 U. S. 354, 46 S. Ct. 513, 70 L. Ed. 986. In Edenfield v. United States (C. C. A.) 8 F.(2d) 614, there were three indictments, efh ?ont™S coufte; th® firft count charging a conspiracy to manufacture liq-nor, and the second to manufacture liquor without making a permanent record. Eden-field was convicted and sentenced on both counts of each indictment. The judgment was affirmed in toto by this court in a memorandum opinion, which, while recognizing the principle of law that there must be evidence Beyond proof of sale, stated that “the evidence for the government tended to show that plaintiff in error furnished to his codefendants copper and other materials to be used in making a still, as well as sugar and meal to be used in the manufacture of liquor.” The case was reversed by the Supreme Court because of the conviction on the second set of counts which charged conspiracy to manufacture liquor without making a permanent record, on the authority of the Katz Case, supra; and it was remanded to the district court for resentence on the first counts. 273 U. S. 660, 47 S. Ct. 345, 71 L. Ed. 827. It is to be con-n , ,, o , ,, , ,, ceded. therefore, that the evidence was held , ’ ' r\ . . t. ^ • ,, by the Supreme Court to be sufficient to susj. n i » *i • > , -r> n tam the first count of each indictment. But the record in Edenfield’s Case affirmatively shows, though the memorandum opinion does not, that he not only, made the sales, but, aft-i, , , ... er they were made, that he actively partici- ... . • r.1 .»ii • 1 i.pated in manufacturing the stiffs, m loca mg them m places where it was unlikely that they would be found, and m disposing of the hquor after it was manufactured; and so we held that the jury was authorized “to mfer an agreement to do what was actually done.
There is no similar proof here, but the evidence stops with the sales. The conviction of the sellers cannot be sustained on the ground that they had knowledge of the intention of the purchasers to use the sugar and other articles in connection with the unlawful manufacture of liquor. One cannot be held as a member of a conspiracy upon proof merely that he had knowledge of, or negatively acquiesced in, a crime that was about to be committed; but, in order to fasten guilt upon one accused of being a coeonspirator, it is necessary to prove that he actively partieipated in the conspiracy charged. Bishop’s Criminal Law (9 Ed.) § 633; 5 R. C. L. 1065; McDaniel v. United States (C. C. A.) 24 F. (2d) 303. There was no evidence that Lee, Franklin, and Campbell were acting in concert; for all that appears, each was acting only for himself. The conspiracy charged was not proved against any of the appellants-
The judgment is reversed.