Esters v. United States, 15987.

• Decision Date: 23 October 1958
• Docket Number: No. 15987.,15987.
• Citation: Esters v. United States, 260 F.2d 393 (8th Cir. 1958)
• Parties: Wilton ESTERS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

260 F.2d 393 (1958)

Wilton ESTERS, Appellant, v.UNITED STATES of America, Appellee.

No. 15987.

United States Court of Appeals Eighth Circuit.

October 23, 1958.

George F. Edwardes, Texarkana, Tex., submitted brief for appellant.

Charles W. Atkinson, U. S. Atty., Henry M. Britt, Asst. U. S. Atty., and Robert E. Johnson, Asst. U. S. Atty., Fort Smith, Ark., submitted brief for appellee.

Before JOHNSEN, VAN OOSTERHOUT and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

A jury found defendant guilty of selling approximately 56 gallons of whiskey in unstamped containers, in violation of Title 26 U.S.C.A. § 5008(b); and of possessing certain items of personal property intended for use in violating the provisions of the federal internal revenue laws relating to intoxicating liquor, in violation of Title 26 U.S.C.A. § 5686(b).From the judgment imposing sentence, the defendant has appealed.

Since the factual background leading to the indictment is detailed in the opinion of the trial court in denying defendant's application for bail, pending appeal, seeUnited States v. Esters, D.C., 161 F.Supp. 203, we dispense with again setting out in full the facts developed on trial.For the purpose of disposing of the points presented by appellant, it will suffice to make this summary of the material evidence: On February 22, 1956, the Sheriff of LaFayette County, Arkansas, and a member of the Arkansas State Police, along with other officers, observed a moonshine whiskey still in operation on property formerly owned by appellant's father-in-law, and which at that time was owned by appellant and his wife, or by his wife.The officers kept the still under surveillance during the afternoon of that day, and, upon returning that night, they found 56 one-gallon containers of moonshine whiskey at the still site; that early in the morning of February 23, 1956, the officers observed Clarence Robinson and an unidentified person load the 56 one-gallon containers of moonshine whiskey in a GMC pickup truck; that shortly after the arrest of Clarence Robinson, appellant drove his Willys pickup truck via the only road leading into the area, and within 100 to 120 feet of the still.Upon examining appellant's truck, the officers found that it contained 600 pounds of cane sugar, a 100 pound sack of bran, 8 five-gallon cans of gasoline, 70 empty one-gallon jugs and a siphon hose.According to the testimony of the sheriff, cane sugar and bran are ingredients adapted to the manufacture of illicit liquor.

The sheriff testified that at the scene he"* * * asked Mr. Esters why he continued to deal with this type of business, and he(the defendant) said that he was in ill health and wasn't able to work and it wasn't too much work involved around that still."The patrol officer testified that in addition to the above admission, appellant also stated "* * * (T)here was only one thing he hated, he said he had a son, that he hated to have him learn and know about this, him being engaged in this business."

Through Clarence Robinson, the Government developed that Robinson had purchased the 56 gallons of moonshine whiskey found in his truck from appellant, and had agreed to pay appellant $5 a gallon therefor; that on the morning of February 23, Robinson was given directions by appellant as to the road which would lead to where the whiskey was located.

Appellant challenges the sufficiency of the evidence to sustain the conviction.It would appear that this contention is predicated upon the belief that, absent the testimony of appellant's accomplice, Clarence Robinson, there is no factual basis upon which to rest the verdict.And from this premise the argument is advanced that the uncorroborated testimony of an accomplice is insufficient to furnish a legal basis for a conviction.This is an erroneous concept of the law.For, as this court said in Haakinson v. United States, 8 Cir., 238 F.2d 775, at page 779:

"Even if the jury may have regarded Chesling as an accomplice, that fact would not be of any help to appellant on this appeal, for the testimony of an accomplice, though uncorroborated, can legally constitute a sufficient basis for a conviction, if it is not otherwise incredible or unsubstantial on its face.Caminetti v. United States, 242 U.S. 470, 495, 37 S.Ct. 192, 61 L.Ed. 442;Harrington v. United States, 8 Cir., 267 F. 97, 103;Greenberg v. United States, 8 Cir., 297 F. 45, 47;Webb v. United States, 8 Cir., 8 F.2d 145, 146;Rossi v. United States, 8 Cir., 9 F.2d 362, 366;Johns v. United States, 10 Cir., 227 F.2d 374, 375;McClanahan v. United States, 5 Cir., 230 F.2d 919, 922."

Moreover, there were facts, circumstances and incidents developed in the trial, which properly could have been regarded by the jury as corroborative of Robinson's version of appellant's connection with the offenses.As we have seen, appellant appeared at the scene of the illegal operation on the morning when the attempt was made to convey the moonshine whiskey from the premises; he possessed supplies and equipment adapted for use in distilling the same type of whiskey which Robinson had purchased from him; and at the scene he made voluntary and damaging admissions.In this state of the record we see no room for the contention that the case should not have been submitted to the jury.

The appellant also contends that the judgment cannot stand because the court made comments upon the evidence and the weight thereof which were prejudicial and deprived him of a fair trial.The assignment springs from the testimony of J. H. Porterfield, a member of the Arkansas State Police, and the remarks of the court in connection therewith.The following presents a full picture of the incident complained of.

(By Witness Porterfield)"The question was asked, and I can\'t remember whether I asked or if Sheriff Baker asked it, but I remember the answer, that he was in bad health and had lots of doctor bills and was not able to do heavy work and in that business he didn\'t have to do heavy work and that was the way he was making his livelihood.

"The Court: What business — you say that business?

"The Witness: In the liquor business.We were referring to this liquor business.I spoke to Mr. Esters in a friendly friendship tone of voice.I have known Mr. Esters a long time and I asked him why he was still engaged in this business, and I believe he answered the second time about the doctor bills; he said there was only one thing he hated, he said he had a son, that he hated to have him learn and know about this, him being engaged in this business.One other remark I recall, he said: `I guess I will have to go down and spend some time with my brother-in-law.\'

"By Mr. Britt: Who is his brother-in-law, if you know?A. A. P. Powell.

"The Court: Powell?

"The Witness: Yes, sir.

"By Mr. Britt: Will you explain that; did Mr. Esters explain that to you?

"The Witness: Well, in our conversation — I was one of the arresting officers in the Powell case.

"Mr. Shaver: I object to that, if the Court please.

"The Court: Well, he said he might have to spend some time with Powell — do you know where Powell was?

"The Witness: Yes, sir.

"The Court: Where was he?

"The Witness: He was out here at the Correctional Institute out here.

"Mr. Shaver: I certainly object to that.

"The Court: Overruled.

"Mr. Shaver: Well, save my exception.

"The Court: Now, for the sake of the record, he was questioning, as I understand, Mr. Porterfield was questioning — this defendant as to why he was engaged in the liquor business at that particular still.Is that it, Mr. Porterfield?

"The Witness: Yes, sir.

"The Court: And he gave his reasons as to why he was, and he said he reckoned he would have to spend some time with his brother-in-law, and then his brother-in-law, it seems, was in the Federal Penitentiary.I think that —

"Mr. Shaver: That is what I object to.

"The Court: I think that is perfectly competent, for it is in the nature of an admission on his part.

"Mr. Shaver: Because A. P. Powell was in the Federal Correctional Institute would not be any evidence

...