Benton v. United States, 7126.

• Decision Date: 22 May 1956
• Docket Number: No. 7126.,7126.
• Citation: 233 F.2d 491
• Parties: Hardin BENTON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

233 F.2d 491 (1956)

Hardin BENTON, Appellant, v. UNITED STATES of America, Appellee.

No. 7126.

United States Court of Appeals Fourth Circuit.

Argued April 9, 1956.

Decided May 22, 1956.

Max F. Ferree and W. H. McElwee, No. Wilkesboro, N. C., for appellant.

H. Vernon Hart, Asst. U. S. Atty., Greensboro, N. C. (Edwin M. Stanley, U. S. Atty., Greensboro, N. C., on brief), for appellee.

Before PARKER, Chief Judge, SOPER, Circuit Judge, and PAUL, District Judge.

SOPER, Circuit Judge.

Hardin Benton was indicted under 26 U.S.C. §§ 7302 and 5686 of the Internal Revenue Code for the unlawful possession of 1700 pounds of sugar, a pick-up truck and other property intended for use in violation of the Internal Revenue laws with reference to distilled spirits. He waived a jury and was tried by the District Judge, who found him guilty and sentenced him to four months in jail. He appealed to this Court and was admitted to bail pending the appeal since the Judge thought that the admission in evidence over the defendant's objection of testimony as to his bad reputation and his previous conviction of a similar offense raised arguable questions which should be reviewed by this Court.

The evidence was confined to a single incident which occurred after 10 o'clock P. M. on June 22, 1955. At that time a pick-up truck, rattling as if it were empty, was seen by an investigator to enter the driveway of a house in Wilkes County in the Middle District of North Carolina, and turning off all the lights roll to the basement door of the house in the rear. A light went on in the rear of the house and after a few minutes was extinguished. Then the truck emerged and entered the street at a different point and drove slowly about 100 feet with the lights out and stopped. The truck did not rattle and it appeared to be loaded. In a short time the lights went on and the truck proceeded on the highway. The investigator then radioed to other Revenue agents a short distance away, who followed the truck a distance of five miles to the neighborhood of the defendant's house. They then arrested the defendant and seized the truck and found that it contained the sugar as described in the indictment.

When the defendant was arrested he stated that he had just purchased the sugar and had gotten it from another truck on the roadside at a point other than the premises which he was first seen to enter. He refused to tell from whom he had purchased the sugar or what he was going to do with it and he stated that if he had known that he was being followed he could have easily escaped.

This was all the evidence bearing on the substance of the crime charged in the indictment and there was no direct testimony as to the occupation of the defendant or the purpose for which the sugar had been acquired. It was merely shown that he resided in a rural district surrounded by farm lands. The Government, however, in order to support the charge that the property seized was intended to be used in violation of the liquor laws, offered in evidence the record of a prior conviction of the defendant on October 26, 1948, when he was sentenced to eight months in jail for conspiracy to violate the Internal Revenue statutes. The attorney for the Government stated at the time that the evidence was offered to show the defendant's intent. In addition, a Government witness was permitted to say that the defendant had the reputation of being part of a syndicate engaged in the operation of a large distillery and to have been occupied in driving race cars and in the whisky business. All of this testimony as to reputation and prior criminal conduct was taken over the objection of the defendant who did not testify as a witness and who offered no testimony in his own behalf.

We are of the opinion that it was error under the circumstances to admit evidence of the defendant's reputation for violating the liquor laws and to admit the evidence of a conviction which had taken place eight years before the offense which was being tried. The familiar rules with respect to these matters were set out in Michelson v. United States, 335 U.S. 469, 475, 69 S.Ct. 213, 218, 93 L.Ed. 168, where the Court said:

"Courts that follow the commonlaw tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a

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