RIVES, Circuit Judge.
Earl E. Vick and two co-defendants, his brother and their nephew, were indicted in four counts: (1) for possessing and having custody and control of an unregistered still contrary to Section 2810 of the Internal Revenue Code, 26 U.S.C.A.; (2) for making and fermenting on premises other than an authorized distillery about 720 gallons of mash fit for distillation and production of distilled spirits contrary to Section 2834 of the Internal Revenue Code; (3) for possessing 15 gallons of distilled spirits in containers without internal revenue stamps contrary to Section 2803 of the Internal Revenue Code; (4) for working in a distillery for the production of spirituous liquors upon which no sign bearing the words "Registered Distillery" was placed or kept contrary to Section 2831 of the Internal Revenue Code. Earl E. Vick plead not guilty to all four counts. His two co-defendants plead guilty to Count 4 and not guilty to the other three counts. The jury found them all not guilty under Count 2, making and fermenting the mash, and they were all convicted under the other counts.
Earl E. Vick alone appeals. He complains of the denial of his motion for judgment of acquittal made at the close of the Government's case, and renewed at the close of all the evidence. See Rule 29, Federal Rules of Criminal Procedure, 18 U.S.C.A.
The evidence introduced on behalf of the United States consisted of the testimony of the four revenue agents who participated in the raid on the illegal distillery. The only testimony of any of these officers tending to show the complicity of appellant in the crime or crimes charged was that appellant was seen sitting on the ground about ten or fifteen feet away
On the other hand, these officers testified that this distillery had been under observation from time to time for a period of from a week to two weeks, and that none of the three defendants, including appellant, had been observed in the vicinity of the distillery until the time of the raid at which the arrests were made. The officers testified that two of the defendants were doing work in connection with the operation of the distillery, that Carter Richard was cutting wood on the hillside and that Floyd Vick was moving around the still, but there was no testimony that appellant was doing anything other than sitting on the ground in the vicinity of the distillery. The officers stated that still slop or mash was observed on the clothes of defendants Richard and Floyd Vick, and that defendant Floyd Vick had a change of clothing at the scene of the distillery, but they observed no sign of mash or any other product which goes into the making of whiskey on the person of the appellant. One of the officers testified that defendants, Richard and Floyd Vick, made statements after their arrests which tended to incriminate themselves, but there was no testimony that appellant made any statement.
One of the revenue agents testified that there was a regular trail leading into the woods where this distillery was located, and that this wooded area is good hunting country, and that people commonly hunt there. Another officer testified that a single barrel twelve-gauge shotgun was found lying on the ground near the distillery, that this was a type gun which might be used for hunting, and that this gun apparently belonged to the appellant since he was permitted to carry it away with him after the arrest.
The only evidence introduced by the defense was the testimony of defendant Carter Richard. Richard testified that he is the nephew of Floyd Vick and of the appellant, and that Floyd Vick and the appellant are brothers; that he was hired by a person whose name he refused to divulge on the morning of the day of the raid to work at the distillery, and that he expected to be paid a compensation of about $10.00 a day; that it was not either the appellant or Floyd Vick who hired him; that he, Richard, arrived at the scene of the distillery about 4 or 5 o'clock in the afternoon, about an hour or two before the raid, found no one else there, and began to cut wood to build a fire. He could not recall whether he or Floyd Vick had built the fire, but was positive that Earl Vick had not built it. He said that appellant had been at the scene of the distillery about 30 minutes when the revenue agents arrived, and that appellant had done nothing during that period except talk and have a drink. He assumed that the appellant was out hunting in the woods, since the appellant had a twelve-gauge single barrel shotgun with him, and these woods are a good place for hunting squirrels, birds, and rabbits.
This was the entire evidence with respect to the appellant's alleged complicity in the crimes charged.
The learned District Judge recognized that, "As to defendant Earl E. Vick, the only evidence tending to show his guilt was his presence at the still and his flight therefrom." The District Judge gave patient and careful consideration to this defendant's motion for judgment of acquittal and to his motion for new trial, and denied those motions in reliance on two cases, Icenhour v. United States, 5 Cir., 187 F.2d 663, and Barton v. United States, 4 Cir., 267 F. 174.
In Icenhour v. United States, supra, 187 F.2d at page 664, this Court emphasized:
In Barton v. United States, supra, the facts included the following:
On the other hand, in Girgenti v. United States, 3 Cir., 81 F.2d 741, 742, the Court said:
In United States v. Mann, 7 Cir., 108 F.2d 354, convictions of conspiracy to violate the revenue laws and of unlawful possession of a still set up in violation of the revenue laws were upheld upon proof that the defendants were present near a large still in a hidden spot with a truck loaded with still accessories worth hundreds of dollars at about 3:00 or 3:30 A. M. on a Sunday. The Court said in part:
There can be no question that
In circumstantial evidence cases, this Court has said repeatedly that to sustain conviction the inferences reasonably to be drawn from the evidence must not only be consistent with guilt of the accused but inconsistent with every reasonable hypothesis of his innocence. Kassin v. United States, 5 Cir., 87 F.2d 183, 184; Rent v. United States, 5 Cir., 209 F.2d 893, 899; McTyre v. United States, 5 Cir., 213 F.2d 65, 67. In such cases the test to be applied on motion for judgment of acquittal and on review of the denial of such motion is not simply whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis, but that of guilt, but rather whether the jury might reasonably so conclude. Curley v. United States, 81 U. S.App.D.C. 389, 160 F.2d 229, 232, 233; cf. Yoffe v. United States, 1 Cir., 153 F.2d 570, 572; Remmer v. United States, 9 Cir., 205 F.2d 277, 287. "The weight of circumstantial evidence is a question for the jury to determine; such evidence alone or in connection with other evidence may justify a conviction. Great care, however, must be exercised in drawing inferences from circumstances proved in criminal cases, and mere suspicions will not warrant a conviction." 20 Am. Jur., Evidence, Sec.1217, p. 1070. As said by Judge Prettyman in Curley v. United States, supra, "The task of the judge in such case is not easy, for the rule of reason is frequently difficult to apply, but we know of no way to avoid that difficulty." Was then the jury warranted in deducing from the evidence inferences which excluded every reasonable hypothesis but that of guilt?
We think not. Appellant was seen doing no work at the distillery; he
Reversed with directions.
"In the opinion of this Court the evidence was sufficient because of ruling of the Fifth Circuit Court of Appeals in the case of Icenhour v. United States, 187 F.2d 663, where the court pointed out that proof of presence at the still and flight was sufficient to support charges of possession of an unregistered distillery, carrying on distillery business, and possession of nontax-paid spirits. In that case the jury expressly found one defendant not guilty of working (just as in the present case it appears Earl E. Vick was not working).
"Consistently with the above cited case the Court of Appeals for the Fourth Circuit, in the case of Barton v. United States, 267 F. 174, ruled that proximity of the accused to the place of the crime, unlawful apparatus used, may raise inference of possession, it being a question for a jury whether this inference is sufficient to convict the defendant."