Howard v. United States

• Decision Date: 08 February 1921
• Docket Number: 3452.
• Citation: 271 F. 301
• Parties: HOWARD et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

271 F. 301

HOWARD et al. v. UNITED STATES.

No. 3452.

United States Court of Appeals, Sixth Circuit.

February 8, 1921

T. A Lancaster, of Lexington, Tenn. (W. H. Lancaster, of Lexington, Tenn., on the brief), for plaintiffs in error.

Wm. D Kyser, U.S. Atty., of Memphis, Tenn.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

KNAPPEN Circuit Judge.

Plaintiffs in error were charged with so-called 'moonshining,' under an indictment containing seven counts, based upon sections 3257, 3258, 3260, 3279, and 3296 of the Revised Statutes of the United States (Comp. St. Secs. 5993, 5994 5997, 6019, 6038), which relate to internal revenue. Bird was convicted upon the fifth count only. Howard and Stanford were convicted upon each of the seven counts, but their respective sentences were no greater than might have been imposed on one only of the counts. It is enough, as to them that the conviction be good as to either of the counts. Abrams v United States, 250 U.S. 616, 619, 40 Sup.Ct. 17, 63 L.Ed. 1173.

There was no motion to direct verdict, and no exception was taken to the charge of the court. The error here complained of is addressed to the refusal of the court below to grant a new trial, by reason of alleged insufficiency of evidence to support the conviction.

There was substantial and direct testimony tending to show the defendants guilty. The contention made here is that the conviction should not be allowed to stand for the reasons: (a) That the testimony of a witness for the government, relating to an admission by one of the defendants, should be regarded as incredible; (b) that it was shown by numerous witnesses that the still was operated by other persons named, and not by defendants; and (c) that there was considerable testimony that defendants were of good character and that two of the important witnesses for the government were of bad reputation for truth. Questions of credibility of witnesses are peculiarly for the jury. Rochford v. Pennsylvania Co. (C.C.A. 6) 174 F. 81, 98 C.C.A. 105; Byers v. Carnegie Co. (C.C.A. 6) 159 F. 347, 86 C.C.A. 347, 16 L.R.A. (N.S.) 214.

The motion for new trial was addressed to the sound discretion of the trial judge, and cannot be reviewed, in the absence of clear showing that such discretion was abused. Robinson v. Van Hooser (C.C.A. 6) 196 F. 620, 627, 116 C.C.A 294. There is no ground for the claim that this discretion was abused. It is enough that...