Colbaugh v. United States

• Citation: 15 F.2d 929
• Decision Date: 17 November 1926
• Docket Number: No. 7408.,7408.
• Parties: COLBAUGH v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

15 F.2d 929 (1926)

COLBAUGH v. UNITED STATES.

No. 7408.

Circuit Court of Appeals, Eighth Circuit.

November 17, 1926.

C. B. Stuart, of Oklahoma City, Okl., and Charles A. Coakley and E. J. Doerner, both of Tulsa, Okl., for plaintiff in error.

John M. Goldesberry, U. S. Atty., of Tulsa, Okl.

Before LEWIS, Cricuit Judge, and MUNGER and FARIS, District Judges.

FARIS, District Judge.

Defendant, sentenced to the penitentiary for two years and to pay a fine of $300 on his conviction for possessing whisky in an Indian country, sued out this writ of error to reverse such conviction.

The only error properly preserved, or seriously relied on, is that the evidence was insufficient to show defendant's guilt. Counsel for the government rather vaguely suggests that such error cannot be urged or relied on, because it was not properly preserved in the trial court. The record on which this suggestion is bottomed is against the government. At the close of the evidence for the government, counsel for the defendant, concededly in an inartificial manner and form, demurred to the same "for the reason that the inference, deductions, and conclusions do not state facts sufficient to base a conviction." The trial court, however, understood what counsel meant by the above language, and overruled the objection, and defendant excepted. Again, at the close of all of the evidence, counsel for defendant said: "The defendants at this time move the court to instruct the jury to return a verdict of not guilty." This request the court denied, and defendant excepted. It is idle, therefore, to contend that the record does not show that the question of the lack of evidence to sustain the verdict was raised below and sufficiently preserved for review here. Moreover this court may notice an error of this kind and magnitude sua sponte.

Attending, now, to the merits of the question touching the alleged insufficiency of the evidence: The evidence discloses that the attention of the officers, who made the arrest and who testified on the trial, was called to defendant and one Cope, who was jointly tried with him, by the action of certain Indians who seemed to be drunk, and who were, when met some half a mile away from the place where defendant was found and arrested, seen to throw away an empty bottle which had contained whisky. The officers followed the back trail of the car in which these Indians were riding, and, on coming up to the place where these Indians inferentially had been, defendant and Cope were found there, and Cope was observed to break a bottle which, the witnesses say, contained whisky.

Some four or five other broken bottles which had contained whisky were seen about this place, which had the appearance, from refuse and débris scattered thereabouts and from its trampled appearance, of having been the place of resort of a number of persons. Defendant was not seen in manual possession of any whisky at any time, nor was any found on his person when arrested, or in the automobile in which defendant and Cope had driven to this place. When the officers came up, defendant started towards the car, but was stopped before reaching it and put under arrest. It rather indefinitely appeared, but concededly in a sufficient way, that Cope was employed by defendant in some undisclosed capacity about a pool hall which defendant operated. The theory of the government is that defendant and Cope had been engaged in selling whisky to these Indians and others; but, when searched, no money, so far as the record discloses, was found on either of them.

Beyond the facts of defendant's presence at this place, that he started toward the automobile when the officers came up, that he had come to this place in an automobile with Cope, and that Cope, who broke the bottle of whisky, was in defendant's employ in a...