Ash v. United States

• Decision Date: 20 May 1924
• Docket Number: 2216.
• Citation: 299 F. 277
• Parties: ASH v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

299 F. 277

ASH v. UNITED STATES.

No. 2216.

United States Court of Appeals, Fourth Circuit.

May 20, 1924

William T. Lovins, of Huntington, W.Va. (Darnall & Lovins, of Huntington, W. Va., on the brief), for plaintiff in error.

Ellis A. Yost, Asst. U.S. Atty., of Huntington, W.Va. (Elliott Northcott, U.S. atty., of Huntington, W. Va., and B. J Pettigrew, Asst. U.S. Atty., of Charleston, W. Va., on the brief), for the United States.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

WADDILL Circuit Judge.

Upon a general verdict of guilty on an information against the plaintiff in error, containing two counts-- the first charging that in the month of May, 1923, he unlawfully transported and possessed intoxicating liquor, the quantity and kind of which was to the United States attorney unknown and the second that on the same date, and for a period of time continuously theretofore, at Ceredo, in the county of Wayne, in the Southern district of West Virginia, did own, control, occupy and maintain a room, house, building, structure, and place where intoxicating liquor was then being manufactured, kept, bartered, and sold in such manner as to constitute a common nuisance, in violation of section 21 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, Sec. 10138 1/2jj), the court imposed a fine of $500 and imprisoned the plaintiff in error for the period of 12 months in the county jail. From this sentence, and to the action and ruling of the court in the introduction of testimony during the trial, and the giving of certain instructions, the writ of error was sued out.

The facts are comparatively few and simple, and depend on the testimony of two government witnesses; no evidence being introduced in behalf of the plaintiff in error. John Callahan testified that he was a federal prohibition agent, and knew the plaintiff in error, Fred Ash, and that he had information that he was going to bring a load of liquor to Huntington that witness went to Ceredo in company with Harry Bull to look for it, and upon reaching that place, between 10:30 and 11 o'clock at night, found the road blocked by a freight train; that he left his vehicle, and went across the tracks, where he found several cars waiting to cross the railroad, and among them a Cadillac roadster bearing a Michigan license, in which plaintiff in error was seated; that witness jumped onto the running board as the car began to back, and directed that it be stopped, and he did what he could to stop the car, which appeared to be heavily loaded. Upon its being stopped, the car was searched, to which plaintiff in error made no...