Jolley v. United States

• Decision Date: 06 April 1956
• Docket Number: No. 15502.,15502.
• Citation: 232 F.2d 83
• Parties: Albert Hugh JOLLEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

232 F.2d 83 (1956)

Albert Hugh JOLLEY, Appellant, v. UNITED STATES of America, Appellee.

No. 15502.

United States Court of Appeals Fifth Circuit.

April 6, 1956.

Henry N. Payton, Newnan, Ga., Stonewall Dyer, Atlanta, Ga., for appellant.

Charles D. Read, Jr., Asst. U. S. Atty., James W. Dorsey, U. S. Atty., John W. Stokes, Jr., Asst. U. S. Atty., Atlanta, Ga., for appellee.

Before RIVES, TUTTLE and CAMERON, Circuit Judges.

RIVES, Circuit Judge.

The appellant appeals alone from a judgment of conviction for conspiracy¹ to violate two sections of the tax laws² pertaining to the unlawful possession, removal and concealment of non-tax-paid whiskey. One co-defendant, Charlie Frank Hollis, was tried with appellant, and both were convicted. According to appellant's brief, a third co-defendant, Donald A. Jones, had previously entered a plea of nolo contendere. The indictment named as co-conspirators not indicted five other men, Norman Holmes, Willie Roy Roberts, Lemon Canion, J. R. Williams and Curtis W. West, and also "a party and parties to the Grand Jurors unknown." It alleged that the conspiracy began in August, 1951, and continued from day to day to the return of the indictment on February 17, 1954.

To effect the objects and purposes of the conspiracy, the indictment alleged that the defendants and co-conspirators committed numerous overt acts among which thirteen were specified. The district court charged the jury that there was no substantial evidence to prove alleged overt acts numbered 5, 8 and 10. We will briefly summarize the evidence which the jury was authorized to believe tending to prove the remaining ten alleged overt acts.

Overt Act No. 1: "That, on or about August 8, 1951, in Fulton County, Georgia, Albert Hugh Jolley and Willie Roy Roberts possessed 156 gallons of non-tax-paid whiskey, and transferred said whiskey from a 1941 Stakebody Truck to a 1935 Ford Coupe."

At the beginning of the trial, appellant's counsel admitted that appellant and Willie Roy Roberts did, in August, 1951, possess 150 gallons of non-tax-paid whiskey, but denied that such possession was connected with any alleged conspiracy. The Government introduced testimony of James L. Collins, who told of having gone to appellant's home in August, 1951, along with two other officers and there finding in appellant's yard and on a truck parked there about 150 gallons of non-tax-paid whiskey, and arresting appellant and Roberts therefor. Both of them had pleaded guilty to the offense against the State of Georgia arising from the same acts.

Overt Act No. 2: "That, on December 29, 1951, in Fulton County, Georgia, Albert Hugh Jolley purchased a 1942 Ford automobile, motor No. 18-6847486, from Albert E. Moon."

Overt Act No. 3: "That, on January 8, 1952, in Fulton County, Georgia, Charlie Frank Hollis transported in a 1942 Ford automobile, described in the paragraph just preceding, 108 gallons of non-tax-paid whiskey."

Overt Act No. 4: "That, on January 8, 1952, Albert Hugh Jolley drove another automobile owned by him immediately in front of the said 1942 Ford automobile referred to in the two preceding paragraphs, at the time the said Ford was seized while transporting 108 gallons of non-tax-paid liquor."

Albert E. Moon testified that in 1951 he bought a 1942 Ford automobile from a Mr. Bearden, who was living in Marietta, Georgia; that he owed a finance company which he designated as "North American Loan Company" some money on the automobile; that he advertised in an Atlanta newspaper for the sale of the car and received one answer, that being from the appellant to whom he sold the car; that the appellant and he went to the finance company to have the car refinanced in the appellant's name. He further testified:

"* * * and we filled out the papers, his information and credit reference and all, and after he done that, he decided, he didn\'t want to pay the interest on the loan and we went back over to my house, and he said, he still wanted the car, and said he would just pay me cash for it then."

Still further, Mr. Moon testified that the tax registration on the car has been left in the name of Mr. Bearden, the man from whom he had purchased the car.

A. A. Berry testified that he was Assistant Manager of "American Loan and Thrift Corporation",³ and in such capacity had custody of the records of that company; that an information sheet which he produced, and which was introduced in evidence as the Government's Exhibit No. 1, was an official record kept in the regular course of business⁴ and showed that on December 29, 1951, some employee of the company took an application for a loan on a 1942 two-door Ford automobile from Albert H. and Bertie Jolley.

Miss Inez Kinney testified that she was file clerk in the Motor Vehicle License Unit of the Revenue Department of Georgia and had custody of the files of automobile vehicle registrations in that State. She produced the 1951 license tag registration for a 1942 two-door Ford, being tag number ES-5700, registered in the name of Vester C. Bearden of Marietta, Georgia.

George Bradley testified that he was a State Trooper; that on or about January 8, 1952, between 7:30 and 8 o'clock in the morning, he had passed on the highway two automobiles being driven 200 or 300 feet apart and had recognized the appellant as the driver of the lead automobile; that, after passing the cars, he pulled into a service station and waited until both cars had passed, travelling at about the same distance apart; that he then fell in behind the second automobile, waited until it got to a shoulder wide enough to pull off without interfering with traffic, sounded his siren and pulled the automobile off on the shoulder; that two men jumped out of the car, ran and escaped; that the car contained 120 to 125 gallons of non-tax-paid whiskey; that it was a 1942 Ford automobile, bearing a 1951 Georgia tag, ES-5700.

Overt Act No. 6: "That, on or about August 26, 1952, Albert Hugh Jolley possessed 21 gallons of non-tax-paid whiskey near his house in Fulton County, Georgia."

Officer W. Earl Thompson testified that on August 26, 1952, he and Officer Adams were patrolling the Old National Highway about two miles from the appellant's residence, when they stopped D. A. Jones and Charlie Frank Hollis in an automobile which they found to contain 10 one-half gallons of non-tax-paid whiskey; that, after arresting Jones and Hollis, they made further investigations at the appellant's premises; that about 100 feet behind appellant's barn they found 2 one-half gallons of non-tax-paid whiskey and further on from there in the same area they found 20 one-half gallons of non-tax-paid whiskey; that appellant's house was the closest one to the 2 one-half gallons, but there were other houses closer to the 20 one-half gallons; that there was no path leading to the 20 half gallons and the area was just open pasture; that he does not know who owned the land on which the whiskey was found.

Overt Act No. 7: "That, on or about August 29, 1952, Charlie Frank Hollis, J. R. Williams and Albert Hugh Jolley went to the home of Lemon Canion in Fulton County, Georgia, carrying a large quantity of non-tax-paid whiskey, and `stashed\' the same near the house of the said Canion."

On or about August 29, 1952, officers found near the home of Lemon Canion, not in Fulton County but just over the line in Clayton County, Georgia, 4 one-half gallons of whiskey, several empty cases of half gallon jars, and in a graveyard back of his house 35 or 40 gallons of whiskey, all non-tax-paid. This house is distant from appellant's house seventenths of a mile by walking and a mile and four-tenths by road. Lemon Canion testified so vaguely that the Government plead entrapment by the witness. According to his testimony, the liquor belonged to someone other than himself but he did not know to whom, and was unable to identify the person or persons who had left the whiskey on his premises.

Overt Act No. 9: "That, on September 6, 1952, Albert Hugh Jolley in Fulton County, Georgia, employed Curtis W. West to make a trip to North Georgia in an automobile and bring back a load of non-tax-paid liquor, and he arranged for Charlie Frank Hollis to accompany said West and paid the expenses of such trip; and the said load of liquor was brought back to a place near College Park, Georgia, and unloaded; and the said Albert Hugh Jolley thereupon directed the said West and the said Hollis to deliver three cases of the said non-tax-paid liquor to a customer in East Point, Georgia, where the said Hollis and the said West were arrested about three o\'clock in the morning."

Officer Ellis Whitfield testified that on or about September 7, 1952, at about 2:30 A.M., he and another officer stopped a car on Holcombe Street in East Point, Georgia, and found that it contained 38½ gallons of fruit jars of non-tax-paid whiskey. In the car were Curtis West, who was driving, and Charlie Frank Hollis. West stated that the whiskey was his and that Hollis had nothing to do with it. They arrested West but not Hollis.

Curtis West testified that his previous statement that Hollis had nothing to do with the whiskey was false; that, in fact, he was hauling the whiskey for the appellant, who had promised to pay him $50.00 for the trip and had sent Charlie Frank Hollis along to show him the way; that Hollis paid for the gas and the whiskey; that, after they had unloaded the whiskey, the appellant directed them to return and take three cases to East Point, and on that trip they were arrested; that the appellant had agreed that, if he were caught, appellant would pay his fine and get his car back, but for the witness "to take the rap"; that appellant later told him that he did not have the money to pay his fine, in fact, did not pay him the $50.00, but had bought tires for the car costing $32.00 and did give him two or three dollars in cash.⁵

Overt Act No. 11: "That, on or about July 13, in Fulton County, Georgia,

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