Boyett v. United States, 6098.

• Citation: 48 F.2d 482
• Decision Date: 08 April 1931
• Docket Number: No. 6098.,6098.
• Parties: BOYETT v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

48 F.2d 482 (1931)

BOYETT v. UNITED STATES.

No. 6098.

Circuit Court of Appeals, Fifth Circuit.

April 8, 1931.

Wm. C. Pierce and W. K. Zewadski, Jr., both of Tampa, Fla., for appellant.

W. P. Hughes, U. S. Atty., and William A. Paisley, Asst. U. S. Atty., both of Jacksonville, Fla.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

FOSTER, Circuit Judge.

Appellant was convicted of unlawful manufacture of intoxicating liquor and possessing liquor and apparatus designed for manufacture of same, and was sentenced to serve two years in the penitentiary. No other person was indicted with him. Not a single exception was reserved at the trial, but we are asked to notice plain error appearing on the record. Of course, we may do so, in a proper case, under the provisions of our rule 11 and under the provisions of 28 USCA § 391. It is but fair to say that appellant was not represented in the District Court by the same counsel who appeared on this appeal. As to the occurrences that we are asked to notice as plain error, we quote literally from the bill of exceptions as follows:

"The jury retired to the jury room and after apparently an hour came back into the Court and through their Foreman, asked additional instructions from the Court as to whether the defendant would be guilty of the charges in the indictment if he (the defendant) knew that the still described by the government witnesses was on the defendant's property, and he (the defendant) made no effort to stop it.

"Whereupon, the Court further charged the jury:

"`If the defendant knew that the still was in this house, on his property, as stated by the Government witnesses, and in operation there, and took no steps to stop it, he would be equally guilty with the person, or persons, so operating the distillery, under the charge the Court has previously given you in regard to principal and accessory.'

"Whereupon the jury retired for some time and returned into Court and reported that they were unable to agree upon a verdict. Whereupon, the Foreman stated:

"`Your Honor, it may be that if we had further instructions, we might be able to reach a verdict.'

"Whereupon, the Court replied:

"`I am afraid there are some of you who do not want instructions, and are not willing to follow the instructions given by the Court.

"`It does not seem to the Court that there should be any great difficulty in arriving at a verdict in this case.

"`Mr. Marshal (addressing the Marshal of the Court): You can prepare supper for this jury and a place for them (to be made confortable) for the night, and after supper you may permit them to consider their verdict until bedtime, and then permit them to retire until morning, and after they have had breakfast, return them to their jury room for further consideration of their verdict. Be sure and see that they are made comfortable.'

"Whereupon, the jury again retired and in about five minutes thereafter returned to the Court and announced that they had agreed upon a verdict. * * *"

The government depended for conviction entirely upon circumstantial evidence. A still in full operation was found on appellant's farm in Pasco county, Fla., together with a quantity of mash and liquor, in a building situated about 60 yards from his residence, but inclosed by a barbed-wire fence, which ran across a path leading to appellant's door. Appellant took the stand and testified he had rented the building where the still was discovered to a man named J. Q. Smith and that he had nothing to do with the still and did not know it was there. He was corroborated as to having rented the building by...