Jensen v. United States, 14983.

• Decision Date: 17 June 1954
• Docket Number: No. 14983.,14983.
• Citation: 213 F.2d 781
• Parties: JENSEN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

213 F.2d 781 (1954)

JENSEN v. UNITED STATES.

No. 14983.

United States Court of Appeals Eighth Circuit.

June 17, 1954.

Albert L. Habhab, Fort Dodge, Iowa, for appellant.

F. E. Van Alstine, U. S. Atty., Sioux City, Iowa (Richard W. Beebe, Asst. U. S. Atty., Sioux City, Iowa, on the brief), for appellee.

Before SANBORN, JOHNSEN and COLLET, Circuit Judges.

SANBORN, Circuit Judge.

John Everett Jensen has appealed from a judgment and sentence based upon the verdict of a jury finding him guilty under an indictment which charged that during the months of July, August and September, 1952, he carried on the business of a wholesale liquor dealer in the Central Division of the Northern District of Iowa, and willfully failed to pay the special tax required by federal law, in violation of § 3253, Title 26 U.S.C.A.

At the close of the evidence, Jensen moved for a directed verdict of acquittal, and, after the jury had returned a verdict of guilty, moved the court for a judgment of acquittal, and, in the alternative, for a new trial. His motions were denied. He asserts that the District Court erred in failing to direct a verdict in his favor and in failing to enter a judgment of acquittal after verdict.

Section 3254(b), Title 26 U.S.C.A., provides that "* * * every person who sells, or offers for sale, foreign or domestic distilled spirits, wines, or malt liquors in quantities of five wine-gallons or more to the same person at the same time, shall be regarded as a wholesale dealer in liquors: * * *."

By his appeal Jensen challenges the sufficiency of the evidence to make the issue of his guilt one of fact for the jury. It must be remembered that "In considering the sufficiency of the evidence to sustain the verdict of the jury, this Court must take that view of the evidence which is most favorable to the government, must give to the government the benefit of all the inferences which reasonably may be drawn from the evidence; and must refrain from concerning itself with the credibility of witnesses and the weight of evidence. Holmes v. United States, 8 Cir., 134 F.2d 125, 130, certiorari denied 319 U.S. 776, 63 S.Ct. 1434, 87 L.Ed. 1722; Egan v. United States, 8 Cir., 137 F.2d 369, 375, 376; Miller v. United States, 8 Cir., 138 F.2d 258, 259." Affronti v. United States, 8 Cir., 145 F.2d 3, 5.

Viewed in the light most favorable to the Government, the evidence was, in substance: that sometime in the summer of 1952 Jensen's Ford Pickup truck, "full of whiskey," was in a cornfield on the Less farm near Fort Dodge, Iowa; that in August of 1952 Jensen asked James M. Williams, of Fort Dodge, a bartender in Ralph's Tap Room, if he could use some whiskey; that Williams said that he could, and Jensen replied that he would have some coming in a few days; that about August 5, 1952, Paul Ross told Williams that Jensen had the whiskey; that this was in the morning about 8:30 or 9:00 o'clock; that Williams met Jensen and Ross east of town on a country road; that Ross took Jensen back to town and they brought out a carload of whiskey in a Buick automobile; that they stopped the car and took ten cases of whiskey out of it, and Williams put it into his car; that he told Ross to come to the tavern and get the money for it, because Williams did not want Jensen coming in; that Williams paid Ross for the whiskey; that Jensen was driving the Buick automobile which contained the whiskey; and that Williams got 240 pints in that transaction.

The Government's evidence further showed that about September 20, 1952, Williams met Jensen in the Blue Bomber Tavern, and Jensen asked him if he (Williams) could use more whiskey; that Williams said that he could, and would take 20 cases; that on the morning of September 26, 1952, Williams agreed to meet Ross at the Less farm to get one case of whiskey at noon and the other 19 cases that night; that when Williams went out to the farm at noon he got the one case and saw Everett Jensen's Ford truck there "full of...