Huffman v. United States

• Decision Date: 13 March 1962
• Docket Number: No. 18723.,18723.
• Citation: 297 F.2d 754
• Parties: James HUFFMAN and Evelyn Nelson HUFFMAN, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

297 F.2d 754 (1962)

James HUFFMAN and Evelyn Nelson HUFFMAN, Appellants, v. UNITED STATES of America, Appellee.

No. 18723.

United States Court of Appeals Fifth Circuit.

January 11, 1962.

Rehearing Denied March 13, 1962.

Murray L. Williams, Water Valley, Miss., Sam Lumpkin, Tupelo, Miss., for appellants.

Alfred E. Moreton, III, Asst. U. S. Atty., Thomas R. Ethridge, B. Euple Dozier, U. S. Attys., Oxford, Miss., for appellee.

Before RIVES, CAMERON and BROWN, Circuit Judges.

CAMERON, Circuit Judge.

Appellant James Huffman and his wife Evelyn Nelson Huffman were convicted of possessing untaxpaid liquor in violation of Title 26 U.S.Code §§ 5205(a) (2) and 5604(a) (1) and were sentenced to fine and imprisonment. They were indicted in an eight count indictment and were found not guilty under six of the eight counts.

Count one was a conspiracy count charging that the appellants had conspired with James and V. O. Bridges to commit various violations of the Internal Revenue Laws, specifying thirteen overt acts. The second count charged the appellants and the Bridges with possession and control of an unregistered still contrary to §§ 5179(a) and 5601(a) (1) of Title 26 U.S.C. The remaining six counts charged the Huffmans (and in count three the Bridges) with illegal possession of whiskey in amounts varying from 1½ pints to 6,132 gallons, in containers not having stamps affixed. The total quantity charged in these six counts to have been possessed was 7,257 gallons, 1½ pints. The appellants were convicted by the jury of the possession of 1½ pints, as charged in count five, and of 110 gallons as charged in count seven. They were acquitted of the charges of conspiracy, of possessing the still and of possessing a total of 7,147 gallons of whiskey as set forth in the remaining counts. V. O. Bridges, during the trial, entered a plea of guilty to count two, possession of the still, and count three, possession of 309 gallons of whiskey.

Appellants contend that their motion for directed verdict should have been granted on the ground that there was insufficient evidence to sustain the jury's findings against them on counts three and seven. A careful reading of the record convinces us that the proof against Evelyn Nelson Huffman was not sufficient to support the verdict as against her and that the motion for directed verdict should have been granted. No good purpose will be served by detailing the evidence.

A receptacle containing one and one-half pints of whiskey was found in a locked outhouse adjacent to the dwelling occupied by Evelyn and James Huffman. The title to this property was in the son of James Huffman who lived in a distant city. Huffman gave permission for the search of the outhouse, and when the whiskey was found he claimed it as his own, stating that he was keeping that as "a little drinking whiskey."

As to the 110 gallons covered by count seven, the evidence was not strong, but was, in our opinion, sufficient to warrant submission of this count to the jury. This whiskey was found by agents of the Alcohol Tax Unit in two charred barrels at a hay house about one-half mile south of the Huffman's residence. That, too, was on land standing in the son's name. The transfer of this property to the son had taken place when he was quite young and several years before the whiskey was found. The action had been taken in connection with domestic trouble which was threatened between James and Evelyn Huffman.

Evelyn Huffman claimed to be the owner of the hay in the house where the 110 gallons were found, but disclaimed any knowledge of the presence of the whiskey. She had testified that her husband's business was collaborating with her in the growing of pastures, the raising of cattle, and selling them on the market. The jury was warranted in believing that James Huffman had actual possession of the field in which this hay house was located and, with his wife, owned the hay in it.

It was shown that, during the spring and early summer of 1959, James Huffman had purchased from the operator of a feed and seed store in Grenada, Mississippi nearly 4,000 pounds of Balboa Rye grain. Huffman was accustomed to call in his truck and purchase the grain in 100 pound bags, paying cash for it. The largest delivery was eight or nine bags in June or July, 1959. This grain was suitable for use in the manufacture of whiskey. One of the representatives of the County Agent's office testified that this grain was not generally planted in that section of the State, and he had never known of any plantings except a few in small quantities for experimental purposes. Some of the empty rye sacks were found in the garage at the Huffman home. From these facts and circumstances, we think a judgment of conviction on count seven is supported by substantial evidence.

Appellant James Huffman argues that the court below committed error in giving the jury a supplementary charge when, after more than four hours of deliberation, it was called back to the courtroom and had advised the court of its inability to agree upon a verdict. No exception was taken to the charge, and we do not agree with the appellant that the giving of it constituted plain error under Rule 52, Federal Rules of Criminal Procedure, 18 U.S.C.A. Cf. Allen v. United States, 1896, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528; Powell v. United States, No. 19030, 5 Cir., 1961, 297 F.2d 318; Cook v. United States, 5 Cir., 1958, 254 F.2d 871; Butler v. United States, 5 Cir., 1958, 254 F.2d 875.

We have carefully considered the other errors assigned by appellant James Huffman and do not find any of them possessed of merit.

As to appellant James Huffman, the judgment of the court below is affirmed; as to the appellant Evelyn Nelson Huffman, the judgment is reversed and judgment rendered here in her favor.

Affirmed in part and in part reversed and rendered.

JOHN R. BROWN, Circuit Judge (concurring as to Appellant Evelyn Nelson Huffman and dissenting as to Appellant James Huffman).

Coming as it does on the heels of Powell v. United States, 5 Cir., 1961, 297 F.2d 318 No. 19030, December 8, 1961, from a panel having two of the same Judges as this one and through a single spokesman, it is difficult for me to see how we can justify the dynamite charge used here. Considering the fact that the harm, if it is harm, cannot actually be eradicated by an ostensible withdrawal or supplemental instruction, the apparent distinction that in Powell an exception was registered by the accused while here, after an expressed acquiescence in the trial court, it is urged as a matter of plain error is an inconsequential basis for declaring one trial to have been unfair, the other one fair. If there ever were a place for the plain error rule of F.R.Crim.P. 52, this should be it. This is the Judge speaking. He is speaking not on the substantive merits of the case. He is speaking about developments subsequent to submission of the cause. He alone has determined that the time has come for an admonition to the jury. When it is done, it is too late to undo it. Nothing, absolutely nothing, he may say can really correct this if (a) the time was inopportune or (b) the content or method of supplemental instruction is significantly faulty. Consequently, this ought to be viewed just as though counsel, instead of acquiescing, had gone through the formality of excepting.

When approached in this fashion, the charge as here given reveals that the Judge was subjecting this jury to pressures and coercion of a kind never for a moment sanctioned by the Allen charge. Indeed, the departure from Allen is so marked that whatever limited use ought ever to be allowed or made of it when carefully circumscribed must be forfeited by the misguided offhand elaborations of it as here declared. The objectionable features are highlighted by inserting the bracketed numbers 1 through 13. It is significant that only part 9 is an accurate paraphrase of the Allen charge as pronounced in 1896 in Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528. The jury first retired about 1:20 p. m. At 5:40 p. m. the Court called the jury back to the courtroom. When, in response to the Court's question the foreman advised the Court that the jury had been unable to arrive at a verdict with respect to any of the defendants on any of the counts, the following supplementary charge was given by the Judge:

"I can understand partly how twelve people can often see things from different viewpoints, 1 but you must remember that Courts and juries exist for the purpose of deciding questions and settling lawsuits.

2 "It means a great deal to the parties in interest in this case, — the prosecutors, the defendants, — for a verdict to be returned.

3 "There is no reason for any of you to suppose that it would be any easier for another jury to reach a verdict. This now is substantially the third day we have been involved in trying this case. You have been here away from your usual activities, listening to the evidence, listening to my instructions, and listening to the arguments of the lawyers.

4 "In addition to the inconvenience caused to you, your presence here and the presence of the Court officials has been a substantial expense to the Government. 5 All of these Court officials, including me, are here at Government expense.

6 "To say it another way, the taxpayers are making a substantial contribution to the operation of this Court in the trial of this case.

7 "Then, too, these lawyers who are engaged in the trial of this case have other obligations to other clients, — other engagements they must meet.

8 "Unless you can decide this case, it means all of this will have to be gone over again; that everyone involved except you twelve men sitting in the box as jurors, who would be disqualified, — it means everyone else involved will have to go over this same long road again.

9 "It is your duty, as I told you generally in my instructions before you retired, to

...