Feutralle v. United States

• Decision Date: 06 January 1954
• Docket Number: No. 14558.,14558.
• Citation: 209 F.2d 159
• Parties: FEUTRALLE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

209 F.2d 159 (1954)

FEUTRALLE et al. v. UNITED STATES.

No. 14558.

United States Court of Appeals Fifth Circuit.

January 6, 1954.

Isaac S. Peebles, Jr., T. Reuben Burnside, Eugene M. Kerr, Augusta, Ga., for appellants.

J. Saxton Daniel, U. S. Atty., Savannah, Ga., Wm. T. Morton, Asst. U. S. Atty., Augusta, Ga., William C. Calhoun, U. S. Atty., Augusta, Ga., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and RUSSELL, Circuit Judges.

RUSSELL, Circuit Judge.

Along with seventeen other named co-conspirators, the appellants, Drawdy and Feutralle, were indicted for conspiracy to violate the Internal Revenue Laws with reference to the manufacture, sale, possession, transportation, etc., of whiskey. In addition, Drawdy was, with others named, charged in ten counts of the indictment with the commission of substantive offenses against the Internal Revenue Laws to which the alleged conspiracy related. The charges against other defendants were disposed of and the case went to the jury only against Drawdy, Feutralle and one McKie. All were convicted. Drawdy received a general sentence of two years; Feutralle of one year, and McKie was placed upon probation. Drawdy and Feutralle prosecute this appeal, urging separate assignments of error.

Common to the specifications of error by each is the contention that the evidence is insufficient to support the verdict and the consequent error in the court's overruling of defendants' respective motions for judgments of acquittal. As to Drawdy's case, the record is full of evidence by Federal and State officers, alleged co-conspirators and others which points overwhelmingly to his participation in the conspiracy as charged and in the commission of substantive offenses upon which he was sentenced. This evidence was in no wise controverted. In Feutralle's case, the evidence against him was less strong, coming chiefly from one witness, an alleged co-conspirator, one Williford, whose credibility came under serious attack by a showing of his prior convictions of felonies, and that he was at the time of the trial a paid "stool pigeon" in the employ, in some manner, of the Alcohol Tax Unit. However, Williford's testimony, if credited, definitely and positively showed Feutralle was connected with, and participated in, some of the alleged illegal activities with Drawdy and others. Of course, the credibility of this witness was for determination by the jury and not proper for re-examination upon appeal. The jury's verdict finding Feutralle guilty evidences an acceptation of Williford's testimony. Therefore, as to neither appellant can it be said that the jury's verdict is without support in the evidence.

In adjudging the merits of the appellants' respective claims of procedural errors which are said to have induced the verdicts against them, we view the specifications in the light of the record as a whole. While as to both of these defendants we find in the rulings of the court aberrations from proper trial procedure, we do not find in them a basis for a determination of that prejudice which properly requires a reversal as to either of the defendants, for we do not think, considered either singularly or totally, they substantially affected the fair consideration of their guilt or innocence by the jury.¹

Though relating to different witnesses, the chief thrust of the appellants is against the manner and method by which the court permitted the government's counsel to examine two witnesses from, and by means of, written statements which these witnesses had given to government officers following their arrest. It is also contended as to the witness called against Feutralle that the court's direction that he be held by the marshal intimidated the witness. Appellant Drawdy presents the contention that as to the witness against him the court should have, in any event, restricted the jury to consideration of the testimony to the purpose of impeachment of the witness, as urged upon the trial. As to Feutralle's exception, it appears that when the witness Kelly was called against him the court found the witness to be hostile and evasive and while he did direct the marshal to take custody of the witness, very shortly thereafter this order was countermanded and both the marshal and the judge told the witness he was free to go "on about his business." All of this happened during the time the jury was retired. Thereafter, upon motion of the government, the witness was recalled and the court permitted government's counsel to read separately each sentence of the written statement which this witness had signed and to ask him if it were true. The witness admitted the truth of each of the matters contained in the statement. The recitals of the statement and the questioning of the witness related to a trip made by the witness to South Georgia for a truck load of illicit whiskey and which was apprehended near Augusta and the witness arrested. The material point at issue was the identity of the person who had employed him to make the trip and who had gone to show the place where the whiskey was to be procured and loaded and who had convoyed the truck back to Augusta. The witness at all times denied knowing Feutralle or of seeing in court the man who had employed him, even though this defendant was present before him. While the statement and his specified testimony related to collateral and corroborative matters, the main point at issue was the identity of "Mr. Nubb."² Especially material and significant in determining Feutralle's claim of error is that in his original testimony, as he had in his statement, the witness maintained that he did not know the real name of "Mr. Nubb", did...