Dicks v. United States, 16611.
| Decision Date | 16 May 1958 |
| Docket Number | No. 16611.,16611. |
| Citation | 253 F.2d 713 |
| Parties | Boston DICKS and Alfred COPELAND, Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
A. K. Black, J. B. Hodges, Lake City, Fla., for appellants.
Harrold Carswell, U. S. Atty., Jos. P. Manners, Asst. U. S. Atty., Tallahassee, Fla., for appellee.
Before HUTCHESON, Chief Judge, and BORAH and TUTTLE, Circuit Judges.
Charged in count one with the unlawful possession of 175 gallons of alleged non-tax-paid whiskey and in count two with the unlawful concealment of the same whiskey, defendant Copeland was found guilty on count one, while defendant Dicks was found guilty on counts one and two of the indictment.
Appealing from his conviction, each of the defendants is here insisting that a verdict of acquittal should have been and should now be directed as to him for want of evidence and, in the alternative, that because of errors in the trial, the cause should be reversed and remanded for trial anew.
For the reasons to be briefly stated, we agree as to Copeland's appeal that, because of the denial of his motion for a judgment of acquittal, the conviction must be reversed and the cause remanded with directions to acquit him.
While the appellants have filed a joint brief assigning the same specifications, the factual situation as to each is entirely different. Dicks, in whose actual possession the automobile containing the alleged non-tax-paid whiskey was found and who alone had any actual possession or control of it, was charged and prosecuted as the principal defendant. Copeland, who under the evidence had no connection whatever with the alleged whiskey or the automobile and who lived some distance from the scene of the arrest, was joined in the indictment on the theory alone that he had rented the barn at or near which Dicks was arrested and the automobile was seized, to an unidentified white man with knowledge that the renter intended to put whiskey in it, and was, therefore, an accessory.
Without undertaking to consider or discuss the troublesome question as to the nature and quantum of proof necessary to convict the person as an accessory who rents premises to another, knowing that the renter intends to use them for unlawful purposes,1 it is sufficient to say that the evidence does not sustain the theory. In the first place, the alleged non-tax-paid whiskey involved in this case was not found in the barn which one of the agents testified that Copeland had stated he had rented, not to Dicks, but to some unidentified white man. In the second place, in the same statement, he denied any connection with or knowledge of Dicks or the alleged whiskey on which this prosecution is based, and there is no evidence whatever to support a verdict that he knew anything about it or was in any way connected with it.
As to Dicks, the real defendant in the case, the matter stands quite differently. There was ample evidence that, if what was alleged to be non-tax-paid whiskey was in fact such, he was guilty of its possession and concealment.
Dicks does not deny the possession of the automobile and its contents. He attacks the conviction upon entirely different grounds. These are, in addition to his Specification No. 3, (1) that the indictment was insufficient; (2) that he was subjected to an unreasonable search, seizure and arrest; (3) that the refusal of his request to the judge, to compel persons, whom he wished to use as witnesses on his claim of illegal search, seizure and arrest, to talk to him before he called them as such, was a denial of due process; and (4) that the court's charge to the jury with respect to punishment was erroneous as invading the province of the jury and inviting a conviction by holding out to it that if it convicted, the sentence would be mild, Krull v. United States, 5 Cir., 240 F.2d 122, at page 136.
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...of guilt. Riggs v. United States, 5 Cir., 1960, 280 F.2d 949; Cuthbert v. United States, 5 Cir., 1960, 278 F.2d 220; Dicks v. United States, 5 Cir., 1958, 253 F.2d 713." Or, as we recently stated in United States v. Wentland, 582 F.2d 1022 (5 Cir. "If a reasonable jury could decide that the......
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