Fritts v. United States, 1258.

• Decision Date: 09 December 1935
• Docket Number: No. 1258.,1258.
• Citation: 80 F.2d 644
• Parties: FRITTS v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

80 F.2d 644 (1935)

FRITTS v. UNITED STATES.

No. 1258.

Circuit Court of Appeals, Tenth Circuit.

December 9, 1935.

C. L. McArthur, of Ada, Okl. (E. W. Kemp, of Ada, Okl., on the brief), for appellant.

Earl Pruet, Asst. U. S. Atty., of Muskogee, Okl. (Cleon A. Summers, U. S. Atty., of Muskogee, Okl., on the brief), for the United States.

Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.

McDERMOTT, Circuit Judge.

Appellant and Fred Ferguson were indicted for (1) possessing an unregistered still, (2) carrying on the business of a distiller without bond, (3) working at a still not carrying the sign of "Registered Distillery," (4) fermenting mash on premises other than an authorized distillery, and (5) possessing liquor upon which no tax was paid. Ferguson pled guilty. Fritts stood trial and was convicted.

1. The trial court denied a motion for an instructed verdict and this ruling is the principal error assigned. We have read the testimony and conclude that the circumstances point strongly to appellant's guilt, and that, unexplained as they were, they are not as consistent with any reasonable hypothesis of innocence as with guilt. Fritts moved from his farm to town when school opened in September or October, leaving Ferguson, a hired man, living in a tent on the farm. Fritts went out to the farm frequently, and at least once hauled out shorts, bran, cottonseed meal and two sugar sacks filled with something. On December 13 the officers raided the farm, and in a locked sheet iron building forty steps from the house, they found a 150-gallon copper still, set up and warm. The still was full of mash; bran and corn chops in sacks — materials used in making mash — and 50 gallons of liquor were found in the building. The water supply came through a buried pipe connected with a pump in the dwelling house. The pipe had been buried long enough that weeds and grass had grown over the trench. There was a 300-gallon water tank in the still house. A beaten path led from the dwelling to the still house. The still house was in an enclosure of chicken and barbed wire as high as a man could reach, and forty or fifty feet square. The brick in the still was well-set, smoked up, and looked as if it had been there a year. There were piles of ashes, some of which looked as if they had been there quite a while. The hired man had no key to the building. After Ferguson was arrested, Fritts frequently, in conversation with Ferguson's father "wondered if the boy would get scared and tell anything that would implicate him." Fritts arranged for the bond of young Ferguson, a circumstance hardly consistent with counsel's theory that the hired man was surreptitiously running a still on appellant's farm. Parnell v. United States (C.C.A.10) 64 F.(2d) 324.

Fritts did not take the stand, nor offer any other testimony, to deny or explain these incriminating circumstances.

There are other circumstances; unexplained and undenied, they leave us convinced that this is the all too typical case of a farmer operating a still and shifting the blame to...