MATTHES, Circuit Judge.
A jury found defendant guilty of selling approximately 56 gallons of whiskey in unstamped containers, in violation of Title 26 U.S.C.A. § 5008(b); and of possessing certain items of personal
Since the factual background leading to the indictment is detailed in the opinion of the trial court in denying defendant's application for bail, pending appeal, see United States v. Esters, D.C., 161 F.Supp. 203, we dispense with again setting out in full the facts developed on trial. For the purpose of disposing of the points presented by appellant, it will suffice to make this summary of the material evidence: On February 22, 1956, the Sheriff of LaFayette County, Arkansas, and a member of the Arkansas State Police, along with other officers, observed a moonshine whiskey still in operation on property formerly owned by appellant's father-in-law, and which at that time was owned by appellant and his wife, or by his wife. The officers kept the still under surveillance during the afternoon of that day, and, upon returning that night, they found 56 one-gallon containers of moonshine whiskey at the still site; that early in the morning of February 23, 1956, the officers observed Clarence Robinson and an unidentified person load the 56 one-gallon containers of moonshine whiskey in a GMC pickup truck; that shortly after the arrest of Clarence Robinson, appellant drove his Willys pickup truck via the only road leading into the area, and within 100 to 120 feet of the still. Upon examining appellant's truck, the officers found that it contained 600 pounds of cane sugar, a 100 pound sack of bran, 8 five-gallon cans of gasoline, 70 empty one-gallon jugs and a siphon hose. According to the testimony of the sheriff, cane sugar and bran are ingredients adapted to the manufacture of illicit liquor.
The sheriff testified that at the scene he "* * * asked Mr. Esters why he continued to deal with this type of business, and he (the defendant) said that he was in ill health and wasn't able to work and it wasn't too much work involved around that still." The patrol officer testified that in addition to the above admission, appellant also stated "* * * (T)here was only one thing he hated, he said he had a son, that he hated to have him learn and know about this, him being engaged in this business."
Through Clarence Robinson, the Government developed that Robinson had purchased the 56 gallons of moonshine whiskey found in his truck from appellant, and had agreed to pay appellant $5 a gallon therefor; that on the morning of February 23, Robinson was given directions by appellant as to the road which would lead to where the whiskey was located.
Appellant challenges the sufficiency of the evidence to sustain the conviction. It would appear that this contention is predicated upon the belief that, absent the testimony of appellant's accomplice, Clarence Robinson, there is no factual basis upon which to rest the verdict. And from this premise the argument is advanced that the uncorroborated testimony of an accomplice is insufficient to furnish a legal basis for a conviction. This is an erroneous concept of the law. For, as this court said in Haakinson v. United States, 8 Cir., 238 F.2d 775, at page 779:
Moreover, there were facts, circumstances and incidents developed in the trial, which properly could have been regarded by the jury as corroborative of Robinson's version of appellant's connection with the offenses. As we have seen, appellant appeared at the scene of the illegal operation on the morning when the attempt was made to convey the moonshine whiskey from the premises; he possessed supplies and equipment adapted for use in distilling the same type of whiskey which Robinson had purchased from him; and at the scene he made voluntary and damaging admissions. In this state of the record we see no room for the contention that the case should not have been submitted to the jury.
The appellant also contends that the judgment cannot stand because the court made comments upon the evidence and the weight thereof which were prejudicial and deprived him of a fair trial. The assignment springs from the testimony of J. H. Porterfield, a member of the Arkansas State Police, and the remarks of the court in connection therewith. The following presents a full picture of the incident complained of.
Appellant places emphasis on the statement, "But it is evidence on Esters' part that he was engaged in this business; it is some evidence; it can be explained possibly," and urges that it had the effect of placing a greater burden upon defendant than imposed by law, especially since the remark was made prior to the time defendant had testified. To our mind this contention is tenuous and without substance. The statement of this court, appearing in Batsell v. United States, 217 F.2d 257, 262, embodying the apposite principle of law, is apropos to the instant question. There we said:
See also Goldstein v. United States, 8 Cir., 63 F.2d 609, and Costello v. United States, 8 Cir., 255 F.2d 389, certiorari denied 79 S.Ct. 52. When the comment complained of is viewed in context, we are of the opinion that it was not intended or calculated to disparage the appellant in the eyes of the jury, and we are unwilling to hold that the alleged offensive remark reveals prejudice on the part of the trial judge toward appellant. Indeed, from a careful study of the entire record, it is apparent that the trial judge conscientiously endeavored to preside over the trial with fairness and impartiality.
This brings us to consideration of the assignment that prejudicial error resulted from the failure of the court to instruct the jury that Clarence Robinson was an accomplice and that his testimony was to be viewed and considered by the jury with extreme caution. Again, we are compelled to hold the contention is without merit. It should be observed in connection with this point that appellant did not see fit to request the court to give such a cautionary instruction, neither was objection made nor exception taken to the failure of the court to specifically instruct on this question.
Furthermore, we do not understand that an absolute and mandatory duty is imposed upon the court to advise the jury by instruction that they should consider the testimony of an uncorroborated accomplice with caution. See Caminetti v. United States, 242 U.S. 470, at page 495, 37 S.Ct. 192, at page 198, 61 L.Ed. 442, where the Court, in passing on a similar contention stated: "In Holmgren v. United States, 217 U.S. 509, [30 S.Ct. 588, 54 L.Ed. 861] this court refused to reverse a judgment for failure to give an instruction of this general character, while saying that it was the better practice for courts to caution juries against too much reliance upon the testimony of accomplices and to require corroborating testimony before giving credence to such evidence. While this is so, there is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe them." Compare also Papadakis v. United States, 9 Cir., 208 F.2d 945, 954 and Cowell v. United States, 9 Cir., 259 F.2d 660.
Not only is appellant's contention rendered impotent by the foregoing rules of procedure, but the factual situation obviated the necessity for giving the cautionary instruction. As previously demonstrated, there were facts established by probative evidence which the jury had the right to consider as corroborative of Robinson's testimony.
The judgment is affirmed.
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