Jenkins v. United States, 11248.
| Decision Date | 09 May 1945 |
| Docket Number | No. 11248.,11248. |
| Citation | 149 F.2d 118 |
| Parties | JENKINS v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John J. Bouhan, Ernest J. Haar, and Shelby Myrick, all of Savannah, Ga., for appellant.
J. Saxton Daniel, U. S. Atty., and Green B. Everitt, Asst. U. S. Atty., both of Savannah, Ga., for appellee.
Before HOLMES, McCORD, and WALLER, Circuit Judges.
Appellant was convicted on five counts embodied in three indictments charging that he sold liquor at wholesale in seven different counties in Georgia without paying the special tax required by law. He seeks a reversal of the judgment on the grounds that (1) the evidence was not sufficient to support the verdict, (2) the admissibility of certain documentary evidence was erroneously restricted, (3) the trial judge charged the jury improperly and erroneously failed to declare a mistrial, and (4) the sentences imposed exceeded the maximum prescribed by law.
It appears without dispute that appellant made sales and deliveries of whiskey in wholesale quantities in the different counties as alleged, and that he had not paid the special tax imposed upon such liquor dealers. His defense on the merits was that he made the sales referred to as a selling agent for other wholesale dealers, and that the evidence did not establish that he was himself a dealer. Though appellant worked for a time as a salesman for liquor dealers, several witnesses who were his customers testified that, before making the sales in question, appellant told them he was in business for himself. It also appears that no invoices were issued in connection with these sales, all payments were required to be in cash, and appellant or someone working for him usually made the deliveries. The selling price charged and paid was greatly in excess of the O. P. A. maximum. During this same period, these customers bought other whiskey from those dealers whom appellant once represented, and these purchases were made at ceiling prices, deliveries were made by common carriers with invoices supplied, and payment by check was acceptable. These facts warranted the jury in finding that appellant acted as a dealer in making these sales.
The errors assigned relating to procedure are not well taken. The documents offered in evidence were form reports filed in the office of the Alcohol Tax Unit, pursuant to Section 2857 of the Internal Revenue Code, 26 U.S.C.A.Int. Rev.Code, § 2857, which purported to show the dates, quantities, and purchasers of all whiskey sold by the dealers. The facts and figures set forth therein were mere representations of dealers, apparently not even verified, based in part at least upon unsworn statements of the purchasing...
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...jury should be discharged for failure to agree is usually a matter within the sound discretion of the trial court.' Jenkins v. United States (1945), 5 Cir., 149 F.2d 118, 119, cert. den., 326 U.S. 721, 66 S.Ct. 27, 90 L.Ed. '* * * if a party obtains knowledge during the progress of the tria......
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...Byrne pursued the proper course and exercised wise discretion. See Campbell v. United States, 9 Cir., 221 F. 186, 188; Jenkins v. United States, 5 Cir., 149 F.2d 118, 119; Ferrari v. United States, 9 Cir., 244 F.2d 132, 143-146, certiorari denied Cherpakov v. United States; and Darneille v.......
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Heath v. United States, 3647.
...States, 6 Cir., 259 F. 88; Wilson v. United States, 6 Cir., 149 F.2d 780; United States v. Bonham, D. C., 31 F. 808; Jenkins v. United States, 5 Cir., 149 F.2d 118; Johnson v. United States, 5 Cir., 84 F.2d 114; Rood v. United States, 4 Cir., 7 F.2d 45. 3 Price v. United States, 165 U.S. 31......
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