Lempie v. United States, 5966.

• Decision Date: 18 March 1930
• Docket Number: No. 5966.,5966.
• Parties: LEMPIE v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

39 F.2d 19 (1930)

LEMPIE v. UNITED STATES.

No. 5966.

Circuit Court of Appeals, Ninth Circuit.

March 18, 1930.

T. D. Page, of Seattle, Wash., for appellant.

Anthony Savage, U. S. Atty., and Hamlet P. Dodd, Asst. U. S. Atty., both of Seattle, Wash.

Before DIETRICH and WILBUR, Circuit Judges, and KERRIGAN, District Judge.

DIETRICH, Circuit Judge.

Appellant was adjudged guilty upon an indictment charging violations of the Internal Revenue Laws (26 USCA §§ 306, 307), in that on or about July 1, 1927, he (1) carried on the business of a distiller of spirits without having given bond, as required by law, and (2) he made and fermented a quantity of mash fit for distillation of spirits, not in a distillery duly authorized according to law, but at a point "located approximately 150 yards" from premises occupied by him. Seasonably and in an appropriate manner he challenged the sufficiency of the evidence to warrant a conviction, and the ruling on his motion in that regard presents the question submitted for our consideration.

Appellant resided in a densely timbered, broken section of the country. The extent of his holding does not clearly appear, but it is shown that he had lived there only three or four months prior to July 1, 1927. In full scope and substance the evidence adduced by the government may be stated as follows: Price, a deputy sheriff, testified that in pursuance of his duties he "visited the neighborhood of defendant, five acres of high, dense forest, a mile and a half from the ocean in west Clallam County and abutting on the Quilieute River; that he approached said property around an old railroad grade a mile and a half distant, and then came along the river until he was virtually on defendant's property, where he observed a well-defined trail; that in making a detour through the woods and adjoining defendant's property, he found a trail leading from the bank or near the bank of the Quilieute River, and following said trail, found a still used for the purpose of manufacturing moonshine whiskey; that about this time he was joined by Fred Rice, another Government agent, and together they guarded the still for a considerable time, but no one visited the same, and thereupon they destroyed the still and preserved the finished product found; that upon further investigation the witness * * * found a trail that led past and through the property of the defendant, toward the river bank, and from there to the point where the still was located; that they found also an automatic engine pumping water into pipes, which ran through and beneath the land of the defendant, to which pipes there was connected, at a point just outside the line of the defendant's property, a galvanized iron pipe having the appearance of...