341 F.2d 60 (5th Cir. 1965), 20749, Peeples v. United States

Docket Nº:20749.
Citation:341 F.2d 60
Party Name:Allen Glynn PEEPLES, Appellant v. UNITED STATES of America, Appellee.
Case Date:January 28, 1965
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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341 F.2d 60 (5th Cir. 1965)

Allen Glynn PEEPLES, Appellant

v.

UNITED STATES of America, Appellee.

No. 20749.

United States Court of Appeals, Fifth Circuit.

January 28, 1965

Certiorari Denied April 26, 1965.

See 85 S.Ct. 1362.

Page 61

Murray L. Williams, Water Valley, Miss., for appellant.

H. M. Ray, U.S. Atty., Thomas G. Lilly, Asst. U.S. Atty., Oxford, Miss., for appellee.

Before HUTCHESON and BROWN, Circuit Judges, and CHRISTENBERRY, District judge.

CHRISTENBERRY, District Judge:

Appellant prosecutes this appeal from his conviction on an indictment charging him and others with carrying on the business of retail liquor dealer and wilfully failing to pay the special tax as required by law, in violation of 26 U.S.C.A. § 5691(a). 1 In brief, appellant complains

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that the court below erred in 1) overruling appellant's motion to suppress certain evidence allegedly obtained as a result of an unlawful search, 2) in refusing to order a mistrial as a result of an allegedly prejudicial remark made by the Assistant United States Attorney during his closing argument, and 3) in refusing to give certain jury instructions requested by appellant. Additionally, appellant argues that as a matter of law the evidence adduced at the trial was insufficient to sustain a verdict of guilty.

The only evidence presented at the trial of the case was the testimony of three Government agents, one of whom merely testified that on the date alleged in the indictment appellant had not paid the special tax required for retail liquor dealers. The Government's case rests on the testimony of Agent Mashburn and Investigator Lott of the Alcohol and Tobacco Tax Unit of the Internal Revenue Service. They testified that on the afternoon of November 17, 1962, they drove in a pick-up truck to the home of appellant, located about eighteen miles from Oxford, Mississippi, where, according to various complaints they had received, appellant was operating a retail liquor business. Upon arriving near the house, Lott alighted from the truck and took a position where he could observe the activities around the house. While so situated, within a period of twenty minutes he observed three different vehicles drive into the driveway of the house. On each occasion one or two men or young boys got out of the vehicle and walked to the side door of the house which was located beneath a carport. On one occasion Investigator Lott observed a man walk to the side door and ask a woman, later identified as Janie Wilson, appellant's co-defendant, for two cartons of Schlitz beer. The woman handed the man a package and he asked now much it was; whereupon she replied, 'You know how much it is, three dollars.' The man then left. In addition, Investigator Lott saw several other persons in the vicinity drinking beer. Agent Mashburn then picked up Investigator Lott in the truck, and the two agents drove to the house, stopped and walked under the carport to the side door of the house. Janie Wilson came to the door, and Agent Mashburn asked her for six cans of Schlitz beer, at which time she turned around, opened a refrigerator, and took out six cans of Schlitz beer, placed them in a paper sack and handed the package to Agent Mashburn out the door. Agent Mashburn testified:

'* * * I asked her the price and she said '$3.00.' At that time I showed her my credentials and identified myself and asked her if she had a retail beer stamp, and she said, 'Yes, sir, I guess so.' And so then I asked her, I said . . . 'Well, do you sell tax paid whiskey?', and she said 'Yes, sir, I do.' She said, 'I sell this beer and the whiskey for Mr. Peeples.' She said, 'It belongs to him,' said 'I just stay out here and sell it for him.'

'Q. Did you ask her for the stamp?

'A. And then I asked her to see the stamp and she said, 'Yes, sir,' said 'come on in'.

'Q. Which stamp are you...

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