Hines v. United States, 8407.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: LEWIS and SETH, Circuit , and LANGLEY
• Citation: 365 F.2d 649
• Parties: Keith Carson HINES, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 8407.,8407.
• Decision Date: 31 August 1966

365 F.2d 649 (1966)

Keith Carson HINES, Appellant,
v.
UNITED STATES of America, Appellee.

No. 8407.

United States Court of Appeals Tenth Circuit.

August 31, 1966.

Keith Carson Hines, submitted on brief pro se.

Richard T. Spriggs, Asst. U. S. Atty., Denver, Colo. (Lawrence M. Henry, U. S. Atty., Denver, Colo., with him on the brief), for appellee.

Before LEWIS and SETH, Circuit Judges, and LANGLEY, District Judge.

SETH, Circuit Judge.

Appellant was charged with carrying on the business of a retail liquor dealer without paying the tax required of such dealers, in violation of 26 U.S.C.A. §§ 5121 and 5691. The jury found the appellant guilty of the charge, and this appeal has been taken.

The record shows that a Treasury Department agent purchased a pint of whiskey from appellant at a residence on the night of February 14, 1965. At the time of this purchase the appellant poured the whiskey from a quart bottle into a pint bottle which was purchased by the investigator. There were eight or ten people on the premises at the time, and when the investigator was asked about conditions on the premises and whether there was a "spirit of party atmosphere about the place," he answered

365 F.2d 650

that there was. Another investigator for the Treasury Department also purchased whiskey from appellant on the same premises the same night. He went there in the company of two other men hired for the purpose and was introduced by one of them to the appellant. At this time the appellant again filled a pint bottle with whiskey from a quart bottle. The investigator, his two companions, and the appellant each thereafter drank from the purchased whiskey, and had a conversation of fifteen or twenty minutes' duration. Two days later (February 16) another investigator went to the same residence, identified himself as an investigator of the Internal Revenue Service, and advised the appellant he was required to buy a retail liquor dealer's tax stamp if he was in the business of selling liquor. Appellant then denied he needed such a stamp. On February 21, the investigator of the Treasury Department who made the purchase on February 14, accompanied by another man, returned to the same premises and purchased a pint of Scotch whiskey which was delivered to him in an old Bourbon bottle. The witnesses who testified did not observe any stock of whiskey on the premises other than the quart bottles referred to above

The appellant asserts that the trial court committed error in denying his motion for acquittal for the reason that the evidence of the Government did not show that the appellant was engaged in the business of selling liquor, but on the contrary showed only "friendly accommodation" to the investigators and their companions, or at the most three isolated sales, two of which were on Sunday. Appellant further asserts that the fact that the sales took place in the...