Fields v. United States

• Decision Date: 26 February 1915
• Docket Number: 1311.
• Citation: 221 F. 242
• Parties: FIELDS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

221 F. 242

FIELDS et al. v. UNITED STATES.

No. 1311.

United States Court of Appeals, Fourth Circuit.

February 26, 1915

S. H Sutherland, of Clintwood, Va. (T. L. Sutherland, of Lebanon Va., and Geo. C. Sutherland, of Clintwood, Va., on the brief), for plaintiffs in error.

Joseph H. Chitwood, Asst. U.S. Atty., of Roanoke, Va. (R. E. Byrd U.S. Atty., of Richmond, Va., on the brief), for the United States.

Before KNAPP and WOODS, Circuit Judges, and WADDILL, District Judge.

KNAPP Circuit Judge.

The plaintiffs in error (defendants below) were found guilty by the jury of illicit distilling, and sued out this writ of error to review the judgment of conviction.

On the trial, in August, 1914, it appeared from the government's evidence that E. H. Miller, deputy collector of internal revenue, M. P. Colley, a deputy marshal, and J. K. Colley, a posse man, having learned of an illicit distillery in Dickenson county, Va., went to the locality on the morning of September 11, 1913, to investigate. Arriving in the vicinity of the still, they took their position at a point where it was within sight, though at some distance away, and saw two men moving about there, apparently at work, but were not near enough to distinguish their faces or otherwise recognize them. After keeping up this watch for some 25 minutes they returned up the hill, in the direction from which they had come, for the purpose, as the record indicates, of crossing a fence, which extended down a ridge between the still and the place where they had been watching, and then going down a path through the pasture in which the still was located, in a sort of ravine or 'gulley,' as it is described. In making this maneuver they were out of sight of the still for something like two minutes. As they proceeded down this path they met the defendants at a point about 150 to 170 feet from the still, and where it could not be seen, and placed them under arrest. A moment afterwards one of the officers ran down to the still, which was found deserted, but in full operation.

The principal questions presented by the assignments of error are the following:

1. The witness M. P. Colley, who testified for the government to the foregoing facts in substance, was asked on cross-examination what the defendants said, as to what they were doing and where they were going, when they were arrested. The avowed purpose of this inquiry was, first, to explain the presence and conduct of the defendants at the time they were apprehended; and, second, to show that their tones of voice, or some exclamation by them, could be heard at the still, and thus give warning to any one there to disappear. The trial court sustained the government's objection and excluded the testimony.

We perceive no error in this ruling. The defendants were not in doubt as to the cause of their arrest and the offense with which they were charged, and any statements made by them at the time would be merely self-serving declarations, which were inadmissible under familiar rules of evidence. They testified fully in denial of their connection with the still, but could not deny that they had just left it, while the condition of their clothing, and certain articles found in their possession, gave some indication that they had been engaged in its operation. Moreover, the witness Hammond testified that he was operating the still, and fled when he heard the voices of the defendants and the government officers at the moment the arrest was made.

2. On his examination as a witness for the defendants, Johnny Kiser was asked where Kerran Hammond, Johnnie Johnson, and other persons lived; the declared purpose being to show...