Gilliland v. United States, 24324.

• Decision Date: 01 December 1967
• Docket Number: No. 24324.,24324.
• Citation: 385 F.2d 912
• Parties: Lee GILLILAND, Wilmon Roy Green and Melvin Franklin Pearce, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

385 F.2d 912 (1967)

Lee GILLILAND, Wilmon Roy Green and Melvin Franklin Pearce, Appellants, v. UNITED STATES of America, Appellee.

No. 24324.

United States Court of Appeals Fifth Circuit.

December 1, 1967.

Edwin A. Carlisle, Carlisle & Chason, Cairo, Ga., for appellants.

Walker P. Johnson, Jr., Asst. U. S. Atty., Macon, Ga., Floyd M. Buford, U. S. Atty., Macon, Ga., for appellee.

Before COLEMAN and GOLDBERG, Circuit Judges, and HANNAY, District Judge.

COLEMAN, Circuit Judge.

After a jury trial, all three appellants were found guilty under a four Count indictment charging possession of a still, 26 U.S.C.A. §§ 5179(a), 5601(a); carrying on the business of a distiller without giving bond, 26 U.S.C.A. §§ 5173, 5601(a); carrying on the business of a distiller with intent to defraud the United States, 26 U.S.C.A. § 5602; and working at a still where no sign was placed and kept, 26 U.S.C.A. §§ 5180, 5681(c).

The sole issue raised by this appeal is the sufficiency of the evidence to support the convictions. We of course, apply the time honored rule that in view of the verdicts the evidence must be considered in that light most favorable to the United States and if there is substantial evidence to support the judgment then the convictions must be affirmed, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1944).

The thousand gallon still, filled with mash, about ready to run, was located in an underground room constructed beneath the floor of a chicken house at the home of the appellant Pearce in a rural, generally wooded, area, a few miles from Cairo, Georgia.

Pearce lived in a trailer house. The appellant Green was constructing a home over and to encompass this trailer house. He and his employees had been engaged in this activity for sometime, the exact duration not being established in this record.

From July 12, 1966, to July 14, the enforcement officers had this place under constant surveillance. What they saw as to the activities of Gilliland and Pearce, which the jury credited in its verdict, was unquestionably sufficient to sustain the convictions of these appellants and a detailed discussion of the proof against them would be of no precedential value.

As to Green, the evidence is nothing like so satisfactory. In its case in chief, the government proved only that on July 12th Green was seen handling some lumber and talking to co-defendants around the house construction site, which was separated by a fence from the chicken house under which the still was buried. The officers said they could smell the odor of mash "real strong" that day. On the first day, Gilliland, an employee of Green's on the house construction job, was seen coming out of the chicken house and joining both Green and Pearce near the trailer, as above noted. The officers were too far away to overhear any conversation among these parties. Green was not seen again until about ten minutes before 2 o'clock on the afternoon of July 14. He drove up in his pick-up truck, with a Negro boy as a passenger. He got out of the truck, went through the gate in the fence separating the trailer house from the chicken house, was followed by the boy, went to the side door of the chicken house, unlatched the door, entered, and relatched it. Green was carrying a small brown paper sack containing a loaf of bread and vienna sausage. The officers then rushed in and arrested the defendants, just as Gilliland was coming up through the hole in the floor which led to the still below.

This is the sum of the evidence against Green, as adduced on the case in chief.

There was no motion for a directed verdict at the close of this proof and Green proceeded to take the stand in his own defense. He categorically denied prior knowledge of the still as well as carrying any paper sack, containing food, saying that he had eaten lunch in town with his wife before coming out to the Pearce premises. Had it not been for the latter denial it might have been a reasonable hypothesis that Green was simply bringing lunch to his employee, Gilliland, supposed to be at work on the new house. On the other hand, Green claimed that he went toward the chicken house because Gilliland had called him to "come here a minute". This might have been a reasonable explanation, but the hovering officers said that they heard no such call so it must be assumed that the jury believed no such summons to have occurred.

On cross examination, by way of impeachment, the Government proved that Green had pleaded guilty to the illegal transportation of liquor in 1965, to the unlawful attempt to manufacture whiskey in 1961, to the possession of distilling apparatus on the same date, and to the possession of non-tax paid liquor in 1956. This, of course, constituted no proof of appellant's guilt in the incident of July, 1966. It may very well, however, have been a factor in causing the jury to disbelieve Green's denial of guilty complicity in the still operation.

In our opinion, the controlling question nevertheless remains:

Assuming all the affirmative facts hereinabove related, were they insufficient as a matter of law to establish the essential elements of the offenses charged?

On the one hand it cannot be doubted that Green had a legitimate purpose for being at the Pearce premises. He was building a house. His presence, therefore, was not an unexplained one and if it stopped at that it was a legitimate one.

On the other hand, if the officers could smell the mash on July 12th it might be assumed that Green should have smelled it. Generally speaking, however, without exploring all applicable theories and principles, defendants are not to be convicted on assumptions. We note that Green never went near the still on July 12th and did not so much as return that night, the next day, and the next night or the next morning to the general premises. It rained heavily on the thirteenth, which would have inhibited building operations.

Another problem is that the officers could have taken the still at any time after July 12th. The testimony shows that they knew Green and they knew that he had a record. It seems obvious that they were hoping to catch him and for two days and nights they patiently waited for him to go to the chicken house. Just as soon as he did go, they did not wait to see him do anything which would have indicated his guilty complicity in the distillery operations. They rushed in and arrested him.

All that really can be said is that he was in the chicken house after lunch time, with a sack of bread and sausage in his hand. Simultaneously the man who worked for Green on the house job, Gilliland, came up out of the hole where the still was, he had been in the chicken house for a good while previously, and he had been seen to come out of it on July 12th.

It may with no difficulty be discerned that this evidence was insufficient to support a conviction for possession, custody, and control of the still. We think this was settled in United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965), citing Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818. Green was not shown by the evidence here to have participated in the distilling operations, or to have handled any of the products of the still, or to have served as a caretaker, or watchman, or lookout, or in any other similar capacity. The District Court should have...