Butler v. United States, 4432.

• Decision Date: 03 July 1952
• Docket Number: No. 4432.,4432.
• Citation: 197 F.2d 561
• Parties: BUTLER v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

197 F.2d 561 (1952)

BUTLER v. UNITED STATES.

No. 4432.

United States Court of Appeals, Tenth Circuit.

June 11, 1952.

Rehearing Denied July 3, 1952.

William H. Lewis, Oklahoma City, Okl. (David Tant, Oklahoma City, Okl., on the brief), for appellant.

Robert E. Shelton, U. S. Atty., Oklahoma City, Okl., for appellee.

Before PHILLIPS, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.

HUXMAN, Circuit Judge.

Appellant, Demus Butler, was found guilty by a jury on all four counts of an indictment and received sentences on each count. Count One charged a conspiracy to violate the Internal Revenue Laws, particularly 26 U.S.C.A. § 2810. Count Two charged him, together with others also named in the conspiracy count, of having possession of a still intended for the manufacture of liquor, without having the same registered as required by 26 U.S.C.A. § 2810. Count Three charged him with engaging in the business of a distiller without having given bond as required by 26 U.S.C.A. § 2833, and Count Four charged him with making and fermenting mash fit for distillation of spirits of alcohol on premises not authorized by law, in violation of 26 U.S.C.A. § 2834.

It is contended that the trial court erred in overruling appellant's motion for dismissal of Counts Two, Three and Four. It is urged as to each of these Counts that they are so vague, indefinite, and uncertain that the judgment entered upon the verdict of guilty would not bar another prosecution for the same offense.

Count Two charged that from about the 24th day of April, 1951, to and including the 13th day of August, 1951, in Oklahoma County, in the Western District of Oklahoma, Demus Butler and the other defendants had "in their possession and under their control a still or distilling apparatus set up, designed and intended for use by them, * * * in the manufacture of distilled spirits * * *," the same having "not theretofore been registered with the District Supervisor, Alcohol Tax Unit, Bureau of Internal Revenue for District No. 11, as required by law, in violation of Section 2810, Title 26 U.S.C.A."

Count Three charged that from about the 24th day of April, 1951, until the 13th day of August, 1951, in Oklahoma County, in the Western District of Oklahoma, Demus Butler and the other defendants named therein "did engage and carry on the business of a distiller without having given bond as required by law, in violation of Section 2833, Title 26 U.S.C.A."

Count Four charged that from about April 24, 1951, to August 13, 1951, in Oklahoma County, in the Western District of Oklahoma, Demus Butler and the other defendants "did make and ferment mash fit for distillation or for the production of spirits or alcohol on premises other than those of a distillery authorized according to law, in violation of Section 2834, Title 26 U.S.C.A."

There is nothing vague or indefinite in the charges in these three counts. The nature of the offense, the place where it is alleged the offenses were committed, the period of time covered thereby, as well as the specific statutes which it was claimed appellant violated, are specifically set out. The exact time was not an essential ingredient of the offense charged in this case. Where time is not an essential element of the offense, it is sufficient to charge facts which show that the offense was committed within the statutory period of limitation and in such a case, even though there be a defect in the allegation as to time, it is one of form only.¹ So also it was not necessary to allege the exact place where the offense was committed. Each count charged that the offense therein set out was committed in Oklahoma County in the Western District of Oklahoma. An indictment which charges that an offense was committed within a Federal District, without specifying a county or division, is sufficiently definite.² Appellant's contention that the charges are so vague and indefinite that he could not plead the judgment in this case as a bar to a subsequent prosecution for the same offense is not well taken. The charge in each of the counts, while necessarily general in its terms, clearly defines the nature of the offense, the approximate time when it was committed, and the place where committed. If a second prosecution were attempted, the entire record, including all the testimony as well as the pleadings, would be available to him to protect himself from such a prosecution.³

The further contention is made that the motion for an instructed verdict should have been sustained because of the insufficiency of the evidence. In addition to the counts set out above, Count One charged appellant and other defendants with a conspiracy to violate the Internal Revenue Laws of the United States by having "in their possession and under their control a still or distilling apparatus set up, designed and intended for use by them in the manufacture of distilled spirits, which said still or distilling apparatus had not been registered with the Collector of Internal Revenue for the District of Oklahoma as required by law; also in violation of Section 2833, Title 26 U.S.C.A., in that they would and did engage in and carry on the business of a distiller without giving bond as required by law; also in violation of Section 2834, Title 26 U.S.C.A., in that they would and did make and ferment mash fit for distillation or for the production of spirits or alcohol on premises other than those of a distillery authorized by law." A conspiracy is rarely susceptible of proof by direct evidence. Men do not ordinarily reduce their unlawful agreements to violate the law to writing or permit direct and positive evidence thereof to lie around. Ordinarily a conspiracy can be established only from the acts and conducts of the conspirators and the general inferences deducible therefrom,⁴ and such evidence will be sufficient if it logically and consistently points to and supports the charge. So considered, we think the evidence is sufficient to support the charge. No attempt will be made to exhaustively analyze and set it out in detail. A concise summary thereof shows that appellant purchased a 550 gallon iron steel drum from John Henry Kinney for $35; that this barrel was stored in a garage in Oklahoma City; that at about 5:30 A. M. on May 11 appellant, together with John Henry Kinney, Robert Spotwood, another defendant, as well as a third person not recognized, came to the garage in appellant's truck, loaded the barrel in the truck, and hauled it out in the country. Federal officers followed the truck to within one mile of appellant's farm road. Later the officers returned and saw the place where the barrel had been unloaded. There was direct testimony by Kinney that he, appellant, and Spotwood loaded the barrel in appellant's truck, hauled it to the country, unloaded it, and rolled it into the bushes, and then came back to town. Kinney also testified that appellant asked him to cut a hole in the barrel and weld a spout on it, which he did, and that appellant was present...