44 F.2d 131 | 9th Cir. | 1930
Lead Opinion
Prom a judgment of conviction on a charge that defendant “did * * * unlawfully receive and conceal and facilitate the transportation and concealment of * * * about thirteen (13) cases, of Canadian whiskey, after its importation into the United States, * * * that said merchandise had been smuggled and clandestinely introduced into the United States, to wit, into the Collection District of Montana from the Dominion of Canada; defendant well knowing that the said merchandise had been imported and brought into the United States contrary to law, * * * ” defendant appeals.
At the close of plaintiff’s case appellant moved for a directed verdict of not guilty, on denial of which defendant rested. The testimony was given by the collector of customs, who testified, among other things, that it was his duty to collect duties on imported goods and prevent the smuggling of goods into the district; that prior to becoming collector he was adjutant general of Montana; that he had known the defendant at sight for four or five years and had some fifteen or twenty conversations with him prior to December 12, 1928; that during the last “two or three or four years” he .had seen him at Great Palls quito a few times, sometimes two or three times a day; that about 7:20 p. m. on the day in question he was standing on Third Avenue North, in Great Palls, and saw a Buick car coming west on First avenue, a car he had seen the defendant driving prior to that time; that the driver of the car was
“Q'. Did you put your hand on him ? A. I reached out.with my hand; I don’t recall whether I touched him or not but I believe he was within arm’s reach of me.
“Q. What did he do when you said that? A. He ran.
“Q. At a good speed? A. Pretty fast. I went on into the shop and stepped up on the right-hand side of the ear and young An-no jumped out of the ear and ran out of the door. I called at him to halt, and he put on another notch of speed and ran. I examined the car and found thirteen eases of assorted cases of whiskey in the car. * * *
“Q. What is that liquor — beer, whiskey or wine? A. Whiskey.
“Q. Will you explain.these labels to the jury, — are they Canadian labels? A. Yes, sir.
“Q. All of them? A. No, they are British labels. This one is Scotch.
“Q. Some of them Canadian? A. No, they are all English and Scotch. * * *
“Q. What did you do with the liquor? A. I put it under seizure and brought it over and put it in the vault.
“Q. Any duty placed on this? A. No, sir.
“Q. It came in contrary to law? A. Yes, sir.
“Q. It can’t come in legally? A. Not without a permit.
“Q. And no permit was issued? A. No, sir.
“Q. You were in charge of that, the permit end, if there could be any? A. I was in charge. The permit would come to me.”
On cross-examination, among other things, he was asked :
“Q. Was anybody else at the garage there? What is this place? A. It is a shop where they fix bodies and glass. Mostly replace glass in ears.
“Q. Was anybody else there? A. Yes, sir.
“Q. Who else was there? A. Brewer, the proprietor.
“Q. Did he remain there? A. Yes, sir.”
There is no evidence that the liquor in the auto was Canadian liquor, except, as contended by plaintiff, the proximity of Great Falls to the Canadian boundary line, about 100 miles in direct line, or that it was imported, except that no permit was issued and it bore English and Scotch labels. Upon the charge it became necessary to prove that the whisky was imported from Canada. Mr. Justice Brewer, for the court, in Potter v. United States, 155 U. S. 438, 15 S. Ct. 144, 145, 39 L. Ed. 214, said: “It is generally true, as claimed, that, where an indictment is unnecessarily descriptive, even the unnecessary description must be proved as laid.” In the instant case, if the country from which the whisky was imported had not been given in the indictment, it might have been required by bill of particulars, but being given the proof became necessary. The defendant, under this charge, had a right to rely that it came from the northern exposure, and not from the east, west, or south. Circumstantial evidence, of itself, is sufficient to convict if the circumstances are consistent with each other, consistent with the guilt of the party charged, inconsistent with his innocence and inconsistent with every other reasonable hypothesis except that of guilt. The only circumstances disclosed by the evidence, connecting the defendant with the liquor, is the statement of the collector that he had seen the defendant at a prior time driving the particular ear in question, and that Anno, the driver, had at one time been employed by the defendant, and that the defendant opened the garage doors of Mr. Brewer’s garage as the automobile approached, and, when the
While flight in the presence of crime is a circumstance to be considered, since the dawn it is recorded that “the wicked fleeth when no one pursueth,” but, as said by Mr. Justice Brown in Alberty v. United States, 162 U. S. 499, 16 S. Ct. 864, 868, 40 L. Ed. 1051: “It is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses.” In the instant ease, the defendant Kennedy may have been guilty of an offense under the National Prohibition Law, and because of that fled, and innocent of the erime of importation. Guilt of possession and transportation under the National Prohibition Act (27 USCA) would not presuppose guilt of importation.
The plaintiff contends that possession of liquor in the defendant is sustained by circumstances disclosed, and, such fact being shown, it was incumbent upon the defendant to explain the presence of the liquor, and cites in support United States v. Bookbinder (D. C.) 281 F. 207, 211, and Wong Lung Sing v. United States (C. C. A.) 3 F.(2d) 780. In the first ease, there was evidence that the boxes in which the liquor was contained had foreign labels, had no custom house marks or brands upon them, no labels required under the regulations provided by law to show that it came in under a permit; the defendant, at the time of the seizure, was in the room containing the liquor with the door locked, had the appearance of physical exertion, and a scraper was in the room, and some of the cases showed that the foreign marks on the boxes had been scraped and shavings were lying about the floor. The court properly held the circumstances sufficient to take the case to the jury as to whether defendant could reasonably be assumed to have knowledge that the liquor was imported. In Wong Lung Sing v. U. S., supra, the court simply applied the provisions of law providing that possession of narcotics permits inference that possession is unlawful, and the burden is upon the party charged to explain. These cases have no application here. The eourt is cited to no authority declaring that the possession of liquor is prima facie evidence of unlawful importation. Unlawful possession of narcotics is prima facie evidence of unlawful importation, made so by the narcotic act, but has no application to the issue before the eourt. The motion for new trial should have been granted.
The judgment is reversed, and case remanded.
Rehearing
On Petition for Rehearing.
The indictment in this case charged that the appellant fraudulently, knowingly, and unlawfully received and concealed and facilitated the transportation and concealment of certain eases of Canadian whisky after their importation into the United States, contrary to law, in that such merchandise had been smuggled and clandestinely introduced into the United States, and into the Collection District of Montana, from the Dominion of Canada. In a petition for rehearing filed by the appellee, there seems to be some contention that this eourt, in its opinion, held that it was incumbent on the government to prove that the intoxicating liquor was introduced into the United States from the Dominion of Canada, as charged in the indictment; whereas, the government contends that this aver
“The liquor, in all probability, resembled gin as closely as it did any recognized preprohibition liquor. Most modem hard liquors, aside from their flavor, come from the same still, and it is a matter of commón knowledge that a few drops of the oil of juniper constitutes these days the difference between beverage alcohol and so-called gin.”
In the absence of evidence of importation, there is, of course, no room for presumptions of any kind.
The judgment is reversed and the case remanded, as heretofore ordered.