Hunter v. United States

• Decision Date: 27 March 1920
• Docket Number: 3451.
• Citation: 264 F. 831
• Parties: HUNTER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

264 F. 831

HUNTER v. UNITED STATES.

No. 3451.

United States Court of Appeals, Fifth Circuit.

March 27, 1920

Rehearing Denied April 10, 1920.

J. H Mize, of Gulfport, Miss., for plaintiff in error.

Julian P. Alexander, U.S. Atty., of Jackson, Miss. (H. McK. Fulgham Asst. U.S. Atty., of Jackson, Miss., on the brief), for the United States.

Before WALKER, Circuit Judge, and CALL and HUTCHESON, District Judges.

CALL District Judge.

This case was tried in the Southern district of Mississippi upon an indictment returned February 21, 1919, containing two counts. The first count charges the plaintiff in error with carrying on the business of a retail liquor dealer on the 17th day of February, 1919, without having paid the special tax required by law. The second count charges that the plaintiff in error on the same date did carry on the business of a retail liquor dealer, and through negligence fail to place and keep conspicuously in his place of business the stamp denoting the payment of the special tax imposed by law upon retail liquor dealers.

A plea of not guilty was entered to this indictment, a trial had and a verdict of guilty as charged rendered, upon which verdict said plaintiff in error was by the court sentenced to serve a year and a day in the Atlanta penitentiary from the date of his delivery, and to pay the costs of the prosecution. A motion for a new trial was made and denied. The plaintiff in error seeks the reversal of this judgment by this proceeding, and assigns five errors.

The first two errors assigned are based upon the testimony given by a witness that upon two occasions he had seen the plaintiff in error and another in possession of a quantity of whisky-- once in August, 1918, and again in January, 1919. The objection shown in the bill of exceptions to testimony of the witness as to each of the occasions was that the evidence of the possession of whisky, with no other action shown to indicate intention to sell, was incompetent. This objection was properly overruled.

Two witnesses had previously testified that in January, 1919 they had bought liquor from the plaintiff in error, and that on several occasions the witnesses had been told by plaintiff in error that he had whisky for sale, if they wanted any. Certainly, under this state of the testimony, the possession of whisky at a time prior to the sales was competent to go to the jury on the issue of whether or not the...