Stutz v. United States

• Citation: 47 F.2d 1029
• Decision Date: 16 March 1931
• Docket Number: No. 6105.,6105.
• Parties: STUTZ v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

47 F.2d 1029 (1931)

STUTZ v. UNITED STATES.

No. 6105.

Circuit Court of Appeals, Fifth Circuit.

March 16, 1931.

R. A. Hendricks, of Miami, Fla. (R. A. Hendricks and Hendricks & Hendricks, all of Miami, Fla., on the brief), for appellant.

W. P. Hughes, U. S. Atty., and Wm. A. Paisley, Asst. U. S. Atty., both of Jacksonville, Fla. (W. P. Hughes, U. S. Atty., and William A. Paisley, Asst. U. S. Atty., both of Jacksonville, Fla., on the brief), for the United States.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

The appellant, John H. Stutz, was indicted in three counts for possession and transportation of intoxicating liquors contrary to the National Prohibition Act (27 USCA § 1 et seq.), and for concealment in a boat of intoxicating liquors imported into the United States contrary to the customs laws. He was convicted of all three offenses, and, from a sentence to imprisonment for two years, he appeals. The evidence was wholly circumstantial. The most important facts testified to were as follows: Stutz was interviewed by the customs officers at about 10:30 p. m., at a boat landing in Miami, Fla., where he had a sedan automobile with its back seat removed. He told them they were too late, he had unloaded and was going home. About 2:30 a. m. he and his car, with five other similar cars with back seats removed, and six or seven men were found at another landing where a boat having no lights and sitting so low in the water that its exhaust was muffled by the water was apparently about to land. There was only starlight. It was testified by the officers that appellant shouted to the crew: "The customs are here. Don't come in"; and later: "They have gone for a boat. Take the stuff away and drop it in shallow water where you can find it"; and that he then went to his car and got a pistol and fired two shots. A rattling as of bottles was heard from the vicinity of the boat, and splashes as if throwing things into the water. Appellant and the other men went away, as did the boat, its exhaust being now clear of the water. The position of the boat was noted by the officers, and at daylight the shallow water at that point yielded up 108 sacks of bottled liquors apparently of foreign manufacture. Appellant testified that it was not he who shouted and fired the pistol, and that he was present only from curiosity.

Only two of the assignments of error require special notice, both relating to the charge of the court. An instruction was duly requested in these words: "The court charges you that before you can convict on circumstantial evidence the circumstantial evidence must be consistent with the guilt of the defendant upon trial and inconsistent with his innocence, and the evidence must be so strong, clear and conclusive as to the guilt of the defendant as to remove every other reasonable hypothesis except the defendant's guilt." This was a correct statement of law, and pertinent to the case. 16 C. J. § 1568; Chass v. United States (C. C....