*2 States, 1957, Cir., Williams 303; Pilgreen v. United Carthage, Seawell, Jr., Herbert F. N. The second and more serious Osteen, (William C. L. Osteen Booth & point by appellants raised sufficien is the Greensboro, C., brief), appel- on N. cy of the We do not believe the evidence. lants. evidence was sufficient to Lafayette Williams, Asst. U. S. charge carry verdict Yadkinsville, (James Atty., N. E. C. ing on the business distillers. Atty., Holshouser, Greensboro, N. U. S. very Only The evidence is brief. two brief), appellee. C., on trial, witnesses testified both government. HAYNSWORTH, called Defendants Before SOPER and testify, appropriate did not Judges, made and HARRY E. WAT- acquittal, Judge. motions for KINS, which were District denied. Queen, Investigator, William Alcohol Judge. WATKINS, HARRY E. District Unit, and Tobacco Tax testified that a Joseph appel- Darrell Freeman and or two lants, Freeman distillery, and John Charles an illicit located barrels Russell, fermenting mash, were convicted on Randolph County, giving without the business distillers North Carolina. He examined the mash required by law. ready The indictment bond as that it determined was about charged four counts and on for distillation. He noticed that firewood they: (1) April 27, possessed gathered apparently up been regis- distillery up having pieces set without wood broken in the still area. same, by law; required (2) tered car- He further noticed that a and “fresh business of distillers ried foot travel” led from the still a short given having required by law; bond as old distance to an and thence (3) up made and fermented mash fit for a short woods road distance entering ently road runs although stated that passing Lebanon both officers west, Mt. east and and the Store and Overton’s east Church *3 leaves left the old road were woods old woods road to west. The the Shortly completely outside their vision. at public south the to road the woods, after these two men entered the Mt. Lebanon west mile about one intermittently throughout the mile east and Church, one-half and about breaking the heard noises like the houses officers were no There Store. Overton’s wood, “thumping” “bumping” and of and church and along the the road between to north noises. either the and none store the being- miles, it for several or south again P.M., About 1:30 this same Ford country. wooded along public highway came from the the east, morning. passed it had that It as Early on the got just and, the officers’ it as Queen Wilson, and Sheriff W. W. sight, stop, out of to and heard Randolph County, themselves concealed one officer heard an automobile door public road from in the woods across the open close, and and then the car the road enters woods where the old' tinued on down the road. There is public what road. Their evidence as to car, toas in the evidence who was they they did what varies and saw got anyone out of it. light respects, but, in the some taken P.M., (1955 government, 5:30 another is as About Ford most favorable along model) public came the from road follows: the the east and from direction Mt. they A.M., a 1950 saw About 7:25 stopped Lebanon Church. It the green coming Ford from the east point where the old woods road leaves road, public headed toward Over- west highway. raining public the store. The officers ton’s raining and had been for some time. public road the to north of woods the recognized, The driver car was not recognize occupants and not did Joseph Freeman, but occu- one recognize car, a car did pants, opened get door, started to by defendant, Joseph Freeman. owned out, but did do so. He closed the Rus- or fifteen minutes later About ten door, and the car continued on a west- (father of and Walter Freeman sell erly direction toward the Overton Store. walking Freeman) Joseph down came This yard Ford found Russell’s from the direction road next when Russell was walking come, car had the former A later, arrested. few minutes along walking the bank. and Russell road west, 1955 Ford same returned from to- his son lived Freeman Walter stopped place, the same gether, was at least and their home time, proceeded there short and then Russell miles from still site. east, fifteen Mt. to toward Lebanon Church. eight from the still miles lived five driving Joseph Russell was Freeman approximately fifteen twelve riding with him. The had home the Freemans. from the miles not seen Russell come out of the woods. section, a rural and the officers It was thirty minutes later About this 1955 they not know of did testified from the returned direction Mt. Ford activity carried or business work Church, stop. but did Lebanon others, defendants, in that section of twenty thirty later, About minutes County. Randolph walking Joseph Freeman came out of the general from the direction Freeman woods Russell When road, where the old turned meets the old reached highway. pro- public The officers and then had not onto him enter woods. He seen crossed that road south ceeded general still, appar- road and walked direction discovered, parallel north bank road, the surveillance. Store. abandon Overton’s toward westward 6:55, 1955 Ford driven About not a case where This is west, stopped Russell, returned and, therefore, the were found at a still Free- and Walter at the old woods presence at usual inferences from such man, out of had come who fact, applicable In a still are here. general direction of the how to show here got car, car continued into the near the seen thereafter, Shortly east. on toward the nor how far the was'from *4 public road the crossed the two officers public highway or to the old woods road, down the old woods continued and any ever road. If Joseph Free- from which in direction the still, it a from the seen within half-mile path come, the and thence to man had appear the evidence. does from path, still the and to the still. Near question that some- There can be but no they still, three found far day, operating a still one was whiskey. then followed cases of For but that is not sufficient. the mud to marks in down fresh foot the on business to the be a wood fire the still. There was distillers, to it not alone sufficient coming from boiler, “shakers” were still general they in show that the gallons mash, jars worm, spent the being operated. locality a still where was whiskey, evidence filled with and other jury under make out case To op- in was found the still had been government circumstances, the such recently. eration The found officers tending connect to must show some facts except path still other to the the operation of such still. them with the by approached the it one officers appear, Flight, or the when the officers (which and led into the old woods road sugar, finding quantities of of excess public road), and another then to the path mash, whiskey containers, yeast, whis- off from this first which forked evidence, key, parts still, or directly public and the led to premises by officers search leading directly path, to On second this connecting accused, automobile of the or there was also evidence particular him still with point second of path where this travel. The general, liquor in have or business entered the corroborate been used to sometimes from con- visible where the officers were explain presence of the accused making people cealed, possible for in locality. produce officers Sometimes still the woods to without leave transfer, possession or sale evidence of officers, being observed parts liquor, purchases of material or go making for others to they operation, or still sometimes along path day, and from the still clothing or other found at trace articles leading directly still, carry- accused, see him or being offi- officers. The observed ing materials or or from a articles they saw evidence of testified that cers operation. in which are used still second when fresh travel on this they Often, statements of the accused to the day. area that same examined the are revenue officers introduced. None any to find evi- officerswere not able any facts, ap- of these other evidence old woods road dence travel pear to in connect this case beyond off where the liquor or with with still this going still. general. ., undisturbed, If the officers were ap- left the still satisfied that pellants were operat- the ones of con- who were their and returned to ing they night still, gone they could cealment, all where the- However, operated! while the still more evidence. search guilty parties. identified the nothing happened, next In- else stead, realizing they returned that the guilty parties find none have If there dence. ence eral, circumstances cient cars, evening it does not We convict one of then available to or the of a distiller. evidence to connect some operations particular been waited went to the general, remained all general any have found no to connect person *5 corroborating cited, liquor search of appear all needed departed. their locality had ended has been still or where mere more night in vain. lost hiding place, them, only accused, cases, them held suffi- Evidently homes, evidence, facts the evi- accused to find on the liquor direct pres- with gen- making viction. tillation. The Court as follows: such 185 F.2d identified distance In Bell v. United [*] a trial credibility, tion for a directed quital, on the evidence “ * “The true evidence would not [*] approval Curley right never even U.S.App.D.C. 389, [*] judge, must determine whether ** 302, 310, ” only gallons weigh rule, , where present passing upon giving jury Judge States, Cir., of mash fit therefore, the evidence held, area, verdict of to determine full at the Soper appellant page play is that still, quotes mo- ‘up- un- ac- 699: dis- justifiable fact, draw inferences of is true that fresh It officers found might fairly a reasonable mind along marks in the foot mud guilt beyond clude a reasonable woods down to doubt.” when entered the about 7:00 raining P.M., and that was Upon evidence, we cannot raining had been ever, How- for some time. say might fairly that a reasonable mind it was evidence that guilt beyond conclude doubt. reasonable raining when these entered suspicious circumstances, There are “but early at about creating probability a mere of A.M., 7:40 or had thereto. rained guilt giving suspicion rise a mere Queen Officer it clear that makes guilt conjecture of is sufficient.” along paths foot fresh marks both were Moore United observed or two before 564, 568. Here F.2d inference he when first found the still. guilt is tenuous as to so amount to mere speculation. conjectural The verdict is States, Cir., In Cantrell v. United be set aside. must convicted of were unregistered possession of still and a Reversed. quantity held, of mash. The Court page 517: HAYNSWORTH, Judge (dis- presence “The Cantrell in senting). vicinity of the still and momentary Proof of a defendant’s public road, pathway vicinity presence in the with- enough, standing alone, was enough more, out is take the case a verdict of enough jury. It is not because the two counts of first the indictment.” proven between the fact and the relation States, Cir., prosecution In Fowler v. United would have the inference 697, appellant extremely jury F.2d lawfully carrying was convicted of un- draw tenuous. Bare momentary presence proof the business spirituous liquors, working many vicinity open distiller leaves other illegal distillery, unlawfully inferences. ground than The indicates more evidence on the proof much shows Here the momentary presence not to still some walked defendants’ place cir- other the woods. Sounds which vicinity. a web discloses justify think, could have found were those which, would I cumstances concluding beyond preparation for the still’s be- jurors in reasonable gan shortly to be heard after the defend- doubt reasonable walking ants were seen toward the still. operating the still. leaving area after seen still proof direct There was completed. run still’s day. operated When the primary These wit- observations inspected in the afternoon the still late significance by nesses lent were. run, product of the observed circumstances. burning spent mash, fire still a wood “public Leba- road” between Mt. and “shakers” boiler store, non coming Church and Overton’s a dis- from the worm. approximately half, tance a mile and a entering the The defendants were seen unimproved is a small dirt There morning. They early it, no house on it. On either side proceeding in the direction of the totally uninhabited woods extend an old The witnesses’ knew of no busi- miles. short distance into the by anyone ness conducted afternoon, yard. Late in mine, quarry, woods. There no no emerging from the Freeman was seen lumbering operation. The evidence *6 this same woods road other, scenic, discloses or attraction in up picked automobile these woods. They driven Russell. several rainy making homes, It was task from their more than miles tracking relatively entry elapsed defendants eleven hours between their easy foreclosing any shortly inference that the woods after 7:30 into they may whiling away lazy, morning departure have been and their sunny day. evening. area at 6:55 that defendants, then, From their observation the offi- visit- ing friends, path for no one lived in cers could these not see the They working early woods. were not from the evening woods road. In the at a mine, quarry, mill, path, saw for examined how- footprints ever, equipped and found fresh none. fishing were not with the poles fishermen, from the They the still site. rods or guns dogs found no recent or with hunters beyond surveyor’s pur- travel level and rod. Other Shortly path. poses spend which long, after these defend- lead men to rainy day woods, ants entered officersheard uninhabited woods come to breaking mind, they require wood1 equip- sounds and other tools and opera- possess. which related these men sounds ment did not however, fully equipped the still. The sounds came operation; ready the still and the mash the direction of were heard and the during intermittently only wood for fire needed to be afternoon. broken. momentary presence only justifies from a I think the evidence Far vicinity, testimony, inference that men were at might accepted, opera- that the still shows still site while going tion, substantially entered but that to- forecloses early morning. possible every the still ward inference.
1. Wood was used to fire boiler.
There was into second which, evening, site showed signs
fresh of use.
others than these two may their third co-defendant have used participated possi- of the still. That
bility, however, does not obliterate the
tracks on first into the still site defeat inference that defend- participants ants were op- in the still’s
eration.
Crediting circumstantial evidence with
the force entitled, to which I think it is I
would affirm. Calisoff, Chicago, Ill., I. Canel Charles Ill., Canel, Chicago, Canel, & A. Leonard BATISTIC, Plaintiff-Appellant,
Frano counsel, appellant. Tieken, Atty., Robert U. S. Elmer M. PILLIOD, Director, Alva L. Chi Walsh, Attorney, Chicago, Ill., John Peter District cago District, Department United States Lulinski, Ill., Atty., Chicago, Asst. S.U. *7 Justice, Immigration and Naturaliza appellee. counsel, Service, Defendant-Appellee. HASTINGS, Judge, Before Chief No. 13104. Judges. CASTLE, DUFFY and Appeals United States Court HASTINGS, Judge. Seventh Circuit. Chief Jan. 1961. 19-year single Plaintiff is a male Yugo- alien who is a native and citizen of Rehearing Denied En Banc slavia. He admitted into the United Feb. States on non-immi- grant pleasure purpose visitor for visiting depart his uncle. He failed to expiration of his visa is now
living here with relatives. January 26, 1959, plaintiff or- On pursuant deported dered to Section 241 Immigration (a) (2) and Nation- ality Act, 8 U.S.C.A. § ground as a after admission non- immigrant long- visitor, he had deportation permitted. than His er Yugoslavia. Plaintiff’s order directed to judicially deportation ap- was not pealed, and it is conceded deportable alien.