Hastings, Chief Judge, and Duffy and Schnackenberg, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Lewis Ward, defendant, has appealed from a judgment of the district court, convicting him on the verdict of a jury, of both counts of a two-count indictment. He was sentenced to twelve years on each count to be served concurrently.
Count I charged that defendant, being a transferee of marijuana required to pay the tax imposed by 26 U.S.C.A. § 4741(a), did acquire and obtain approximately 418.720 grams of marijuana without having paid said tax, in violation of 26 U.S.C.A. § 4744(a) (1). Count II charged that defendant transferred said marijuana without the required "written order", in violation of 26 U.S.C.A. § 4742(a). Defendant's motions for directed verdict and new trial were overruled.
1. Defendant contends that there was no proof of his guilt beyond a reasonable doubt, because he was not positively identified, he was not present when the crime was committed, and there was no joint enterprise established between Lionel Otis,*fn1 also known as John Alton, and himself. There was evidence tending to prove the facts now stated.
On November 20, 1963, at 8:45 P.M., Gary policeman Hilton, Chicago detective Jamison, federal narcotics agents Raebel and Bautista, with Gary police officers Kutch and Swisher, and government informer Jack Shepard, also known as Sam G. Shepard and Cadillac Jack, arrived in automobiles at 1207 Adams Street, Gary, Indiana. Jamison and the informer drove in the latter's Cadillac car, Bautista and Hilton followed in a squad car, and Swisher, Kutch and Raebel ("the Raebel group") went in another squad car.
For the government, Jamison testified:
"Q All right sir, you say you walked into 1207 Adams Street?
A Yes, I did. I asked the man to my left who was Indian Joe, and he pointed to the defendant. I then walked to the defendant and introduced myself as Jimmy. I told him that Big Ernie from Alton, Illinois, had sent me.
He asked me how was Ernie, and I said he was fine. I told him that Ernie had sent me to purchase two ounces of cocain.
He asked me if I knew several people, he mentioned several names, and one of the names was Jack Shephard. I said yes, I knew Jack Shephard. He told me he did not have any cocain at that time, but he would sell me some marijuana for $125 a pound.
A He told me to go to 1416 Adams Street and wait there, and he would deliver to me there."
Jamison also said that after ten minutes he went in the Cadillac with the informer to the latter's house at 1416 Adams Street.
The Raebel group followed the Cadillac and parked a half block away. In 15 or 20 minutes Raebel saw a white Lincoln drive ...