Abraham Leroy Baker v. United States
227 F.2d 376
5th Cir.
1956
Check Treatment

*1 Hartridge, Daniel, Julian John Saxton America, UNITED STATES of Savannah, Ga., Joseph Bergen, Atty., B. Asst. U. S. No. 15693. Savannah, ‍​​​‌​‌‌​‌‌‌‌‌‌‌‌​​​​‌​​‌​​​‌‌​​‌‌‌​‌‌‌‌‌​​‌‌​​‌​‍Ga., Calhoun, William S. C. U. United States Atty., Augusta, Ga., Fifth Circuit. RIVES, JONES, TUTTLE and Circuit Rehearing Denied Jan.

JONES, charged was in a five- count indictment with of an unregistered still, carrying on the busi- having given ness of a distiller without bond, carrying on the business of a dis- tiller with intent to defraud the United spirits, of its tax distilled “Registered working at a still where no sign Distillery” posted, ‍​​​‌​‌‌​‌‌‌‌‌‌‌‌​​​​‌​​‌​​​‌‌​​‌‌‌​‌‌‌‌‌​​‌‌​​‌​‍was of untaxed On the sion first of these counts he was convicted. last others he had the benefit of a di- acquittal. Growing rected vеrdict out episode separate was a the same in- resisting arrest which dictment trial with the consolidated charges guilty and on which a verdict set aside on a returned but *2 of criminal offenses unconnected with the From the conviction trial. new rule, on one trial as a not ad- an illicit still and of exceptions liquor missible. There are tо was taken. sion of untaxed rule, some of which are discussed were led State officers Federal and frequently cited ‍​​​‌​‌‌​‌‌‌‌‌‌‌‌​​​​‌​​‌​​​‌‌​​‌‌‌​‌‌‌‌‌​​‌‌​​‌​‍case of Weiss v. United during nighttime of the sound States, 1941, 675, Cir., 122 F.2d сerti- cooking of mash to a odor voices and the orari denied 314 U.S. building Savannah, near rural area in a rehearing 86 L.Ed. denied 314 U.S. illegal Georgia, housed still in an which 86 L.Ed. 570. Such making process moonshine testimony pur- will be received for the coming Appellant from the was observed pose showing specific knowledge, spe- building convеrsation with and was in design intent, motive, cific or scheme premises. persons Ascer- any where such element is essential being taining ran, observed he he was the offensе. The being being resisted, and on on seized he possessing liquor ‍​​​‌​‌‌​‌‌‌‌‌‌‌‌​​​​‌​​‌​​​‌‌​​‌‌‌​‌‌‌‌‌​​‌‌​​‌​‍untaxed and he knew the “revenues subdued he said possessing an still are if ran” and didn’t shoot at them specific not suсh offenses as that trying be to that he couldn’t blamed intent which lowers the bar evi- get away. being searched it dence of convictions of unrelated offens- key ring aрpellant found had a that es. McClain v. United upon key which was a which fit the lock ’ ground ap- 224 F.2d 522. On this building oor which the pellant must have a new trial. key Plymouth and a still was found nearby. рarked In the automobile car urges Appellant that the evi sugar, pounds quantity against him dence was all circumstantial pieces copper pipe сharcoal two and inconsistent innocence pipe similar used the still. acquittal and that an should have been Appellant contended and on the stand prеcedents under estab gone testified that he had from Savannah lished Matthews v. United Plymouth Brown, in the with one Jim as- Cir., 1949, and Vick v. appellant sumed the owner of be States, Cir., 1954, 216 F.2d driving car, fоr the it back read, reading These have cases we working garage on it at a where quotation Vick case we find from pellant employed. said he was He ad- a decision of the Seventh Circuit Court seeing thought mitted the charcoal but is where it said: nothing sugar of it. The was in the facts in broad sense “The are trunk of car and he claimed he had dissimilar to our Yet ‍​​​‌​‌‌​‌‌‌‌‌‌‌‌​​​​‌​​‌​​​‌‌​​‌‌‌​‌‌‌‌‌​​‌‌​​‌​‍case. there knowledge explained of it. He his at- differences, and it is are the differ- tempted and his ar- resistance to in each case which ences determine by saying rest he was scared and excit- should which case be taken ed. jury.” Mann, appellant’s objection, Over 108 F.2d appellant’s testimony, the court admit- Here are factual differences ted evidence seven convictions cases of Matthews and cited Vick. Here liq- violations of the intеrnal revenue we find no error the refusal of the uor laws. to direct a verdict of ac- quittal. urges appellant before us urges required that reversal is error there that was an in the admission of evidence of the that absence of the tax was not liquor, inadequacy paid convictions and because of an erroneous given. questions of the evidence to sustain a These conviction. are agree point likely the first is well to recur another tak not trial and en. Evidence of cоmment. proach may in Fallen a new tri- In order that there 946, 948, we said: where

al the “We there and remanded. Reversed been no real Trice’s *3 chang- if, fact, criminal motive in he Judge (concurring RIVES, Circuit ed the numbers on stolen auto- the specially). mobiles. Proof the act carried evident with it the acquittal often de- or conviction That implication of criminal intent. In a prior crim- pends on whether evidence instances, per- such evidence of the evidenced offenses is admissible inal petration of other like offenses is not pages nearly by 100 devoted the needed to establish criminal motive Secundum, 22 subject Corpus Juris in or intent and is not admissible 682-692, pp. Law, C.J.S., Criminаl §§ purpose.” such highly therefore, im- It 1084-1179. Cir., 1955, McClain v. United portant reasons sound that we have present opinion and the excep- application or the the rulе order, seem to me to as reverse so disagreement my thereto, tion legal have us reason the abstract impels my reasoning me brothers backward, definition of the crime rath- charg- specially. Because the to conour er than from the of the acts defendant proof of a es on trial “specific forward to the intent with which my opinion, intent” is done, reversal, think, were such I reason, itself, to ex- in and of sufficient only tends not to confuse rather than to prior convictions. clude еvidence help, erroneously places but crimes not possession of an “specific requiring a intent” outside the I.R.C.1954, still, 26 U.S.C.A. § § application exception to thе rule. spirits possessing distilled and of I.R.C.1954, containers, However, unstamped even when intent § is in is- charged, wrongful sue, prior here 26 U.S.C.A. acts must be sim- § involve, think, charged, of conscious I thе element ilar the one must not wrongdoing general lacking evidentiary criminal intent or remote as to be value, logically prove offenses. See Moris- do other must tend to as most States, 342 U.S. sette United the defendant’s criminal intent in some simply by can L.Ed. 288. Intent be more definite manner than generally proving In in such crimes. this that he is an issue even bаd char- Indeed, example, appellant’s present develop- acter. flight distillery Circuit, could ment the law I at and be- innocent, claimed, probative as hе or lieve have been value such accompanied depend a crim- to show evidence intent must been hence, intent, and, part something of his more than thе inal defendant’s general character, conduct, specific. as Government or criminal See Weiss present all of If there are the v. United claimed. F.2d exсeptions rehearing, requisites of one other 682- forbidding Lloyd States, Cir., v. United rule evidence to the 9; Lindsey convictions, then I do not 227 F.2d 113. The evidence the evidence beсomes inadmissible of the de- simply on trial fendant’s seven merely does convictions showed tendency proof “specific of a not intent.” violate the In- liquor laws, of evidence of ternal Revenue The usual convictions, consti- way all, when admissible tuted at is to that his proved presence that the acts to have the still and show been therefrom done were with a criminal committed intent. Our possi- That allowance for criminal intent. was our law makes some with a say yet bility reform, and does alwаys moonshiner, “once a moonshin- reason, I that the er”. concur For that was not

evidence

admissible.

John G. Drake and Edward S. Whita- ker, Arlington, Va., Hanson, Washington, Arthur B. D.C. EBHARDT, Mrs. Carlton K. (Emmett Tucker, Jr., Doyle, E. F. John Apрellant, Washington, D.C., Koontz, and W. W. Alexandria, Va., brief), INCORPORATED, STORES, SAFEWAY PARKER, Judge, Chief DOBIE, SOPER and No. DOBIE, Circuit Fourth Circuit. (hereinafter Mrs. Carlton K. Ebhardt Argued Oct. brought Ebhardt) called civil action in Decided City Corporation Court against Safeway Alexandria, Virginia, Stores, Incorporated, (hereinafter called Safeway), Maryland corporation. Up- petition Safeway, the cause was removed to States District Eastern Court District Vir- ginia jury trial was held. The damages compensation suit asked al- legedly prop- rats Ebhardt’s erty personal injuries аllegedly and for by her as a sustained result of nervous- induced of rats ness property. her At conclusion presentation of Ebhardt’s the Dis- granted Safeway’s trict Court ground for a verdict on Safeway even if it be assumed that had nuisance, created a Ebhardt offered no substantial evidence show that such proximate nuisance was the cause of the duly ap- rats in her house. Ebhardt has pealed to us. main involved on this is whether the District taking away the case erred in

jury. it think that did and Court must affirmed.