Berry v. United States

• Decision Date: 14 March 1927
• Docket Number: No. 7432.,7432.
• Citation: 18 F.2d 276
• Parties: BERRY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

18 F.2d 276 (1927)

BERRY v. UNITED STATES.

No. 7432.

Circuit Court of Appeals, Eighth Circuit.

March 14, 1927.

George H. Giddings, Jr., and George H. Giddings, Sr., both of Oklahoma City, Okl., for plaintiff in error.

Roy St. Lewis, U. S. Atty., of Oklahoma City, Okl. (Leslie E. Salter, Asst. U. S. Atty., of Oklahoma City, Okl., on the brief), for the United States.

Before STONE and VAN VALKENBURGH, Circuit Judges, and SYMES, District Judge.

SYMES, District Judge.

The plaintiff in error, Albert D. Berry, was informed against on three counts, all relating to the same transactions, which are alleged to have occurred on the 26th day of March, 1925, in Oklahoma county, in the Western district of Oklahoma.

The first count charged possession of intoxicating liquor, to wit, whisky; the second count the possession of two distilling apparatuses and mash designed and intended to be used in the unlawful manufacture of whisky; and the third count, manufacture of whisky.

The evidence tended to show that two local officers, Cummings and Heep, accompanied by Federal Officer Tucker, drove out into the country near to the defendant's farm; that they got out of their car and went toward a small shack, and observed the defendant and another man through the door, which was open, and a still in full operation. The plant consisted of two 50-gallon stills. The defendant had a pair of pliers in his hand and was working on the still. The other party was drawing off mash.

The defendant admitted he was present at the time stated, but says he was not interested in the stills and was not operating them; that he had gone down there, because a neighbor had told him some one was running a still on his land, and had only been there about 10 minutes when the officers arrived. The jury found him guilty on the first two counts, but acquitted him on the manufacturing charge.

The first point raised is that it was impossible for the defendant to have been not guilty of manufacture, yet guilty of the possession of whisky, and the possession of the mash and still; in other words, that he was guilty on all counts or none at all. In reply it is only necessary to say that the first two counts were lesser, separate, and distinct offenses from that of manufacture, and required a different amount and kind of proof. Rosenthal v. U. S. (C. C. A.) 276 F. 714, cited is not in point. Plaintiff in error there, with others, was indicted on two counts, the first of which charged them with having...