McNabb v. United States

• Decision Date: 06 December 1941
• Docket Number: No. 8900.,8900.
• Citation: 123 F.2d 848
• Parties: McNABB et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

123 F.2d 848 (1941)

McNABB et al. v. UNITED STATES.

No. 8900.

Circuit Court of Appeals, Sixth Circuit.

December 6, 1941.

COPYRIGHT MATERIAL OMITTED

Wilkes T. Thrasher and E. B. Baker, both of Chattanooga, Tenn. (J. M. C. Townsend, of Chattanooga, Tenn., on the brief), for appellants.

J. B. Frazier, Jr., of Knoxville, Tenn. (James B. Frazier, Jr., U. S. Atty., and Wm. E. Badgett and Ferdinand Powell, Jr., Asst. U. S. Attys., all of Knoxville, Tenn., on the brief), for appellee.

Before ALLEN, HAMILTON, and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

Another tragic chapter has been written in the bloody book of an age-old history of resistance by lawless mountain clans to enforcement of the Internal Revenue Laws of the United States. From the family burying ground of the Clan McNabb, a death dealing shot was fired in the dark upon a Federal Alcohol Tax Unit Investigator, while in the performance of his official duty.

Five McNabbs were indicted on the charge of murdering the officer. Freeman and Raymond McNabb, twin brothers, and their cousin, Benjamin McNabb, were convicted of murder in the second degree, were sentenced to forty-five years' penal servitude, and have appealed. The other two McNabbs, Emuil and Barney, were acquitted on directed verdicts with the approval of the Government attorney.

The killing occurred in Marion County, in a mountainous section of eastern Tennessee known as the McNabb Settlement, long inhabited by that family.

The murdered federal officer, Samuel Leeper, had accompanied, in an automobile, three fellow officers in the Internal Revenue Service on a raid, guided by two informers by whom arrangements had been made to purchase some seventy-five gallons of untaxpaid whiskey from members of the McNabb family. The four revenue officers met the two informers at an appointed place on July 31, 1940, around 8:45 or 9 o'clock P. M., drove with them in a separate automobile, and parked their car about one-half mile from the spot where the whiskey was to be delivered. Thence, they rode toward the McNabb Settlement in an automobile driven by one of the informers, who was accompanied by the other. While driving up the "McNabb Road," they saw some persons ahead, whereupon informer Davidson cut off the lights of the automobile and the officers alighted from the car. The two informers then proceeded to drive down the road to a point where they found Benjamin, Freeman, Raymond, Emuil and Barney McNabb awaiting them.

The arrangements made between the informers and the McNabbs had been to have the whiskey delivered at a barn; but, when the informers arrived, they were told that the whiskey was cached near a gate to the family cemetery. All five of the defendants were identified as present to participate in the delivery of the illicit liquor.

The car was driven into a hog lot and turned around near the edge of the cemetery. Three of the McNabbs and one of the informers were engaged in carrying the whiskey in five-gallon cans to the car when, by pre-arranged signal to the officers, informer Davidson flashed a flash-light on the front wheel of the automobile. The four Revenue Officers started forthwith on a run toward the car. One of the officers exclaimed, "All right, boys, Federal Officers!"

The three convicted McNabbs ran into the cemetery; the two acquitted McNabbs also made their escape. As the federal officers closed in, the informers drove the automobile past them and departed as previously planned.

The officers ran to the cemetery gate. Having failed to apprehend any of the McNabbs, three of the officers, including Leeper, proceeded to empty the five-gallon whiskey cans found there. One of the officers left to bring their automobile. While the remaining officers were emptying the whiskey, a rock was thrown toward them.

Officers Renick and Abrams stood waiting for the cans to drain. Officer Leeper climbed over the cemetery fence and, with lighted flashlight in hand, was pouring out the contents of two cans of whiskey found within the cemetery when he was fatally shot by the discharge from a shotgun. Apparently, the gun was fired from behind an oak tree near the center of the cemetery. Though peppered with gunshot, Leeper drew his pistol and commenced firing.

One of the officers, Renick, ran to the aid of his stricken comrade. "Where did he go, Sam?" He asked. "Behind that big rock!" Leeper replied. Renick fired two shots.

"About three minutes after the first shotgun was fired," Renick narrated at the trial, "there was a second shotgun shot and I was struck by four or five pellets or shots in different places of my face and body, and the shots apparently came from a different direction. At the time of the second shot, I realized that my flashlight would make a good target and I turned it off and walked back to where Abrams was and I said, `maybe they will get you too.'"

Leeper passed away a few minutes after Renick was shot. Officer Jones, who had gone for the automobile, returned to the scene and, when informed of the situation, went to the nearby house of Jim McNabb and brought back with him a boy, Lawrence McNabb, who assisted the officers in placing the decedent's body in the automobile. The only other McNabb who appeared was a woman who said she was the wife of Barney McNabb. Pursuant to the request of Officer Jones, who rejoined them some twenty minutes after the shooting, the two informers summoned an ambulance, to which the dead body was transferred near the Marion County line and carried into Chattanooga.

Freeman, Raymond and Emuil McNabb were arrested on the night of the murder, brought into Chattanooga and placed in the bull pen in the office of the United States Marshal around two o'clock in the morning. Barney McNabb was arrested the following morning, and Benjamin McNabb, accompanied by his mother and father, surrendered himself to arrest on August 2nd, saying that his mother had been told by the officers that they wanted him to come in.

After their incarceration, the five defendants, some times together, at other times separately or in groups, were repeatedly questioned concerning the crime by numerous Alcohol Tax Unit Investigators. The nature of these interrogations presents the usual conflict in testimony between the accused on the one hand and the officers on the other.

The version of the defendants was that, deprived of food, they were confined in the bull pen of the United States Marshal's office, without beds or chairs, from two o'clock in the morning of August first until five o'clock that afternoon, when they were transferred to the county jail where they were served cheese sandwiches. After a short surcease, they were returned to the Federal Building and interrogated until midnight before being taken back to the county jail.

Before noon next morning, they were again conducted to the Federal Building and examined at intervals until two o'clock of the following morning. They say that, within this period, they were aroused from bed in the county jail around ten P. M., retaken to the Federal Building and there, surrounded by Federal Revenue Officers, were abused, cursed, threatened, accused of lying, and promised lighter punishment should they tell the truth. An acquitted defendant, Barney McNabb, was struck on the head with a book, according to his testimony — not given, however, before the jury. None of their friends, relatives, or counsel were present while the McNabbs were being questioned.

The federal officers sharply contradicted the testimony of the accused, asserted that the defendants were furnished sufficient food and drink; and denied that any promises, inducements, or threats were made, or that any intimidation, coercion, physical violence, or undue pressure was exercised. The officers asseverated that the self-incriminating statements of the defendants were voluntary.

The District Supervisor of the Alcohol Tax Unit, Bureau of Internal Revenue, who was in charge of the investigation, testified: "I told each of them (the five defendants) before they were questioned that we were Government Officers, what we were investigating, and advised them they did not have to make a statement, that they need not fear force and that any statement made by them would be used against them and that they need not answer any questions asked unless they desired to do so, and I asked each of them if he understood that. I talked to each of them individually and each of them said he so understood. I told them that if they did answer the questions to tell the truth, but that they had a right to refuse to answer if they wished. * * * I have never threatened or abused any defendant in my life and I have been in the law enforcement work fifteen years. * * * When I knew the truth I told the defendants what I knew. I never called them damn liars, but I did say they were lying to me."

(1) Before receiving in evidence any purported incriminating statements of the defendants which the Government sought to prove had been made to the officers, the trial judge ordered the jury to retire from the courtroom, and during the exclusion of the jury he heard at length and in detail testimony of officers, defendants and other witnesses. This was in conformity with established proper practice. Cohen v. United States, 7 Cir., 291 F. 368; Mangum v. United States, 9 Cir., 289 F. 213; Hale v. United States, 8 Cir., 25 F.2d 430; Wilson v. United States, 162 U.S. 613, 624, 16 S.Ct. 895, 40 L.Ed. 1090.

Upon the conclusion of this hearing, the judge, for announced reasons, ruled that any statements made by the defendants "under the conditions as submitted to the court" were admissible in evidence. The trial to the jury proceeded and a number of revenue officers testified to admissions made by the defendants.

None of the defendants testified before the jury.

Assigning error, the appellants charge that the admissions or confessions were not free and voluntary, but were obtained by ...