39 F.2d 19 | 9th Cir. | 1930
Appellant was adjudged guilty upon an indictment charging violations of the Internal Revenue Laws (26 USCA §§ 306, 307), in that on or about July 1, 1927, he (1) .carried on the business of a distiller of spirits without having given bond, as required by law, and (2) he made and fermented a quantity of mash fit for distillation of spirits, not in a distillery duly .authorized according to law, but at a point “located approximately 150 yards” from premises occupied by him. Seasonably and in an appropriate manner he challenged the sufficiency of the evidence to warrant a conviction, and the ruling on his motion in that regard presents the question submitted for our consideration.
Appellant resided in a densely timbered, broken section of the country. The extent of his holding does not clearly appear,, but it is shown that he had lived there only three or four months 'prior to July 1, 1927. In full scope and substance the evidence adduced by the government may be stated as follows: Price, a deputy sheriff, testified that in pursuance of his duties he “visited the neighborhood of defendant, five acres of high, dense forest, a mile and a half from the ocean in west Clallam County and abutting on the Quilieute River; that he approached said property around an old railroad grade a mile and a half distant, and then came along the river until he was virtually on defendánt’s property, where he observed a well-defined trail; that in making a detour through the woods and adjoining defendant’s property, he found a trail leading from the bank or near the bank of the Quilieute River, and following said trail, found a still used for the purpose of manufacturing moonshine whiskey; that about this time he was joined by Fred Rice, another Government agent, and together they guarded the still for a considerable time, but no one visited the same, and thereupon they destroyed the still and preserved the finished product found; that upon further investigation the witness * * * found a trail that led past and through the property of the defendant, toward the river bank, and from there to the point where the still was located; that they found also an automatic engine pumping water into pipes, whieh ran through and beneath the land of the defendant, to which pipes there was connected, at a point just outside the line of the defendant’s property, a galvanized iron pipe having the appearance of newness, whieh led to the still and supplied it with the water necessary for its operation; that upon searching the premises of the defendant, they (the witness and his associates) found no evidence of anything that could be used in the manufacture of moonshine whiskey.” Such is the full testimony of this witness, in narrative form as exhibited in the bill of exceptions; and it is added that his testimony was corroborated by that of the three agents who accompanied him at the time.
The defendant produced witnesses, and he himself testified in his own behalf. Within the range of reason the jurors are undoubtedly the exclusive judges of the credibility of witnesses and the weight to be given‘to the testimony, and the rule would exclude interference by either the trial court or' this court touching some of the testimony adduced by and on behalf of the defendant. But on the record as it stands we are of the opinion that the jurors could not, without acting arbitrarily and capriciously, decline to accept the testimony showing that, with the exception of the small section of pipe referred to by the witnesses for the government as “having the appearance of newness,” the water system from whieh this pipe led, consisting of main pipes, a tank and an automatic pump, was installed and used for approximately three years prior to July 1, 1927, and that the defendant did not occupy the premises prior to March of that year.
Reversed.
