258 F. 607 | 4th Cir. | 1919
The testimony against the defendant was, in substance, this: On March 20, 1918, the witnesses Fanning, Austin, and Coleman, federal and state officers, and one Whitworth, while driving along a community road in Lexington county in a northerly direction toward Columbia, saw two men come out of a swamp about 250 yards from the road they were on. The automobile was stopped, and Austin and Fanning pursued the two men, who had turned and run back into the swamp upon seeing them. By tracks and the noise he made in going through the thick undergrowth, Fanning was able to follow defendant across the swamp where he had stopped upon being hailed. Fanning identified him as the taller of the two men he had seen run from the opposite side of the swamp. Defendant was then brought back to the point from which he had run, and thence was taken some 50 yards along the creek or swamp to the still which he is charged with having in his possession and operating. At the still, two fermenters, some beer, caps, several, 'jugs containing a small quantity of illicit whisky, a worm, and other distilling apparatus were found. The pots, or stills, were warm, and their supports too hot to handle. Defendant was placed under arrest and carried back to the automobile. A flask containing a small quantity of illicit whisky was found on him, and. his clothes were soiled with soot and beer at the time of his arrest.
No exception was taken to the refusal to allow the introduction of the drawing or plat offered by defendant, and therefore the question of its admissibility is not before us.
It was not error on the part of the court to charge that:
“This case is not, as has been said, a wholly circumstantial case. There are circumstances, but the mass of testimony is conflicting positive testimony.”
The testimony as to the defendant’s identity, his flight and capture was direct evidence.
Fanning testified that he found a half pint bottle containing “a little bit of whisky” in defendant’s pocket at the time he was ar
“Reasonable doubt is that which would control you in all important actions in your own affairs. It is frequently said a jury must find a man guilty without a doubt. You may find him guilty although you have some doubt, but you must not have any reasonable doubt.”
Charges similar to this have been sustained by the Supreme Court and this court. Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614, 30 L. Ed. 708; Perkins v. United States, 228 Fed. 420, 142 C. C. A. 638; Hendrikson v. United States, 249 Fed. 34, 161 C. C. A. 94.
Affirmed.