Fowler v. United States, 15887.
| Decision Date | 15 June 1956 |
| Docket Number | No. 15887.,15887. |
| Citation | 234 F.2d 697 |
| Parties | Elmer FOWLER, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Henry N. Payton, Newnan, Ga., for appellant.
James W. Dorsey, U. S. Atty., John W. Stokes, Jr., Asst. U. S. Atty., Atlanta, Ga., for appellee.
Before TUTTLE, CAMERON and JONES, Circuit Judges.
This is an appeal from a conviction of unlawfully carrying on the business of a distiller of spirituous liquors, working at an illegal distillery, and unlawfully making 600 gallons of mash fit for distillation.1 The sole asserted ground for reversal is the insufficiency of the evidence to sustain the verdict.
The prosecution's evidence tended to show that on Saturday, April 9, 1955, at about 10:30 A. M., state revenue agents raided an illegal still in open country about two miles from Warm Springs, Georgia. They found three men and a twelve-year-old boy at the still. Two of the men were arrested, and although the third escaped, he was identified. The boy was arrested but released on the spot the same morning.
The appellant was not one of the three men found at the still, but was indicted and tried with them for violations of the liquor laws. The only evidence linking him with the still was the testimony of the boy, largely regarding the events on the day of the raid. The boy lived with his family in a house about 500 yards northeast of the still, which was accessible from the house by a foot-path. At about 7:00 A. M. on the day in question the appellant arrived there by himself in a pick-up truck. He had two cans of gasoline and a piece of drainpipe with him, all of which he and the boy placed behind a ridge. The appellant told the boy that if anybody came there looking for the appellant, to tell him that he didn't know the appellant, and hadn't seen him before. Then he left.
At about 8:00 A. M., two of the appellant's co-defendants arrived in a light green Mercury, bringing, among other things, some gasoline for the burner which heated the still. They sent the boy after a gallon bucket, a gallon jug, a keyhole saw from the car, and a twelve-gauge shotgun, which he was to fire in the air if he saw any intruders. Later in the morning, the revenue agents surprised all those present at the still and took two of the men in custody. The boy was also arrested, but set free.
About an hour after the raid, the appellant arrived again in the pick-up truck, and removed the two cans of gasoline and the piece of drainpipe which he had brought earlier. He asked the boy what he had told the officers, and warned him that he had better not know the appellant. Thereafter he visited the boy on five or six occasions, warning him each time not to know him. These warnings may have been frequent enough to constitute threats.
This evidence was of course wholly circumstantial in character, and if, when considered in the strongest light for the prosecution, it is still as consistent with a reasonable theory of innocence, as of guilt it should not have been submitted to the jury. Philyaw v. United...
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United States v. Gainey, 13
...Third and Fifth Circuits the precedents were less clear. See Graceffo v. United States, 46 F.2d 852 (C.A.3d Cir.); Fowler v. United States, 234 F.2d 697, 699 (C.A.5th Cir.). The variations among the courts of appeals concerned the reasonableness of inferring guilt of the substantive offense......
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Barrett v. United States, 19574.
..."mere presence at a still site cannot support a conviction for violation of the liquor laws relative to the still." Fowler v. United States, 5 Cir. 1956, 234 F.2d 697, 699. Accord, Vick v. United States, 5 Cir. 1954, 216 F.2d 228; Cantrell v. United States, 5 Cir. 1946, 158 F.2d 517. See Mc......
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Moore v. United States, 7906.
...not sufficient. See Philyaw v. United States, 8 Cir., 1928, 29 F.2d 225, 227; 23 C.J.S. Criminal Law § 907(e), p. 154; Fowler v. United States, 5 Cir., 1956, 234 F.2d 697; Dennert v. United States, 6 Cir., 1945, 147 F.2d 286; Garrison v. United States, 5 Cir., 1947, 163 F.2d As held by this......
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United States v. King
...292 (5 Cir. 1963), reversed sub nom. United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). In Fowler v. United States, 234 F.2d 697 (5 Cir. 1956), the defendant was not shown to have visited the still site but only to have deposited gasoline, which the court noted could......