Blalack v. United States, 10080.

• Citation: 154 F.2d 591
• Decision Date: 05 April 1946
• Docket Number: No. 10080.,10080.
• Parties: BLALACK v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

154 F.2d 591 (1946)

BLALACK v. UNITED STATES.

No. 10080.

Circuit Court of Appeals, Sixth Circuit.

April 5, 1946.

L. E. Gwinn and R. G. Draper, both of Memphis, Tenn. (R. G. Draper, D. L. Gerwin, and L. E. Gwinn, all of Memphis, Tenn., on the brief), for appellant.

Doris W. Meenehan, of Washington, D. C., and Thomas C. Farnsworth, of Memphis, Tenn. (William McClanahan and Thomas C. Farnsworth, both of Memphis, Tenn., and Doris W. Meenehan and Nathan Siegel, both of Washington, D. C., on the brief), for appellee.

Before HICKS, ALLEN, and MARTIN, Circuit Judges.

HICKS, Circuit Judge.

Appellant, Blalack, operator of a meat market in Memphis, was convicted on Count II of Information No. 6692, of, on or about June 9, 1945, in Memphis, Shelby County, Tennessee, unlawfully, knowingly and wilfully breaking a veal carcass in violation of Regulation No. 1 of the Office of Economic Stabilization issued and promulgated under the Stabilization Act of 1942 and 1944, being Section 961 et seq., of Title 50 U.S.C.A.Appendix. He was acquitted upon Counts I and III of Information No. 6692. He was convicted upon Information 6710 of unlawfully, knowingly and wilfully storing or retaining in his possession, or possessing several hundred pounds of veal which had not been graded or grade marked in the manner required by the Office of Economic Stabilization Regulation No. 1, promulgated under the Stabilization Act of 1942, etc.

Appellant was sentenced to prison for a period of eight months upon each conviction, the sentences to run concurrently; and was fined $500 on the first conviction and $1,000 on the second.

The evidence tended to show that the City Markets in Memphis consisted of two buildings, the "front" building facing Cleveland Street and a second building facing Market Street, used mostly by farmers. Appellant Blalack maintained two shops in the front building where meat products were sold, and leased storage or "cooler space" in the back building, upon which he paid the rent in June of 1945. On cross-examination he testified that the cooler was across the driveway from the main building where Blalack had his two markets.

James T. Ledbetter, a former business associate of Blalack, testified that the partnership terminated in the early part of 1945, that the big cooler in the processing room was away from the other business and located about 75 feet from the south market and about 200 yards from the other; that after the partnership terminated, there were a lot of matters to close up, and that he always found Blalack "at the office in the north market"; that during the period they were in business together, they had 12 to 16 employees and that they were in and out of the cooler; and that at night as a general rule the man who ran the cooler brought in the key and hung it on a post in the lower market. He never knew of an outsider getting the key, but several times the employees took the key away with them at night. Sometimes, he testified, persons would hang food in there, until a nearby frozen food locker plant opened its doors the next morning. On re-direct examination he made it clear that he was not testifying as to what went on at the market after January 1945, around which time the partnership was dissolved. So far as he knew, no outsider ever had access to the key except through employees.

Dr. George E. Mitchell, Inspector in charge of Meat Inspection for the United States Department of Agriculture, testified that in investigating the interstate transportation of meat on June 1, 1945, he called Samuel P. Penny, Food Inspector of Memphis, and went to the Blalack and Ledbetter market at the south end of the Curb Market and then to the north market, but found no unstamped meats at either. He then asked Blalack, at the north market, if he had any calves coming in. To this, Blalack replied, that he had killed his quota and had difficulty obtaining sufficient meat; that the cooler in the adjacent building was used only for hog carcasses, and that they were not then using it.

Mitchell testified that he and Penny then walked to the cooler and found the door to the room locked; that Penny left and returned with Billy Thomas, one of Blalack's employees, who had the key and unlocked the door. He testified that they found inside two or three veal rounds hanging, and a table full of cut-up meats, steaks and roasts, and a box full of bones and some hides. None of the meat had inspection or grade marks. He estimated that the three half carcasses weighed two hundred and fifty pounds each. The table was pretty well covered with steaks and roasts and there were a couple of white porcelain pans used in meat stores with some cut-up rounds in one of them. He testified that it was "freshly cut meat" from its appearance, since the exposed surface of cut meat darkens after awhile. He said there were some knives and aprons around; and that he found one package containing a good-sized steak upon the wrapping of which the name "May" was written.

He testified that they tried to see Blalack again that day but were unable to find him; that they put a seal on the cooler and instructed Thomas that it should remain closed and the seals unbroken, that they would return at nine o'clock on Monday morning and requested Thomas to tell Blalack to be there at that time; that Blalack did not appear on Monday and that they entered the cooler about eleven A. M.; that he didn't see Blalack again until Thursday or Friday. When he was asked where he was on Monday morning, Blalack replied, "I was looking for the man, for the fellow, that put the meat in the cooler, looking all over the country."

Mitchell testified that the calf inspection mark is a circle about the size of a half dollar in purple ink and has the words "U. S. Inspected and Passed" with an identification mark to indicate the place of slaughter. Grade marks were in lines a quarter of an inch high, also in purple ink and were "Choice, Good, Utility and Commercial." He denied telling the District Attorney that he believed Blalack had nothing to do with the meat, but stated that Blalack told him that he didn't. He was of the opinion that the north market was not 200 yards but about 250 feet from the cooler.

Penny testified that on June 9th he and Dr. Mitchell inspected both Blalack markets and found everything in shape, finding no ungraded meat. He testified that they asked Blalack about the big cooler across from Blalack's first market and that he replied, "I haven't anything in there at all, I haven't been using it for some time, because I can't get any hogs or anything, it has been laying idle." His testimony was that he and Dr. Mitchell walked straight to the locker, and found it locked, that he returned to get in touch with Blalack and found him at the cash register, and said to him, "Blalack, Doctor Mitchell and I would like to get the keys to go into this big box," and that he replied, "Just a minute" and "then he turned around and walked on around through the market" and that they did not see him again that day.

He testified that Blalack told Thomas to bring the key but that he did not go himself. His testimony as to what was found inside was largely confirmatory of Dr. Mitchell's, and counsel for appellant stated that there was no question about what was inside, that they were not disputing it. Penny testified that they did not see Blalack again that day, that he sent Thomas to find him, and that he returned after twenty or thirty minutes and said, "I don't know where he is gone." They sealed the door and told Thomas to tell Blalack to be there at nine o'clock on Monday morning, but that he was not there and they waited around until ten thirty, when someone came from the south market and offered to crawl through a window and open the door and let them in, and that this was the way they gained admission. The seals were unbroken.

On cross-examination, Penny testified that the key was brought to them voluntarily on the first day. He admitted that in making his periodical inspections of the market, he sometimes found Blalack in, and sometimes away.

W. W. Densford, Supervising Investigator for the Food Enforcement of the Office of Price Administration, testified that he went to the Blalack market on June 11th with Dr. Mitchell and Mr. Penny; that the cooler was sealed and that when it was opened they entered about the same time; that they found some cut-up meats, some calf skins, and some bones from which the meat had been trimmed. He saw one package of meat and testified that inside the wrapping was a piece of paper with the words, "Cosby, $1.25." Inside was a small boneless rump roast. He identified another piece of paper found in the cooler, which bore the notation, "Mr. Mertz, 4 TBStks 3 Qr B Rst Rump." None of the meat that he observed had any grade marks on it. On cross-examination he stated that the papers he referred to were on a work bench or table on which the meat was lying.

This was all the evidence. The court overruled a motion for a directed verdict.

Other questions to be considered to one side, we think the action of the court was correct. As stated by us in Zottarelli v. United States, 6 Cir., 20 F.2d 795, 796, we cannot weigh the evidence but we must take that view of it, and the inferences reasonably and justifiably to be drawn from it, most favorable to the Government and determine therefrom whether a verdict against appellant might have been lawfully rendered and if there was substantially competent evidence which would support the conviction, the refusal of a directed verdict must be sustained. It is unnecessary that the guilt of the accused be shown alone by direct evidence. United States v. Manton, 2 Cir., 107 F.2d 834, 837.

It was established that appellant was the owner of the meat business and controlled two retail meat shops and leased the cooler where the unlabeled meat was found. The cooler was about 75 feet from one market and 250 feet from the...