Liverman v. United States, 7709.

• Decision Date: 20 October 1958
• Docket Number: No. 7709.,7709.
• Citation: 260 F.2d 284
• Parties: Willis Junior LIVERMAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

260 F.2d 284 (1958)

Willis Junior LIVERMAN, Appellant, v. UNITED STATES of America, Appellee.

No. 7709.

United States Court of Appeals Fourth Circuit.

Argued October 7, 1958.

Decided October 20, 1958.

Ann E. Calevas and O. Eugene Pinion, Norfolk, Va., for appellant.

W. F. Powers, Jr., Asst. U. S. Atty., Norfolk, Va. (L. S. Parsons, Jr., U. S. Atty., Norfolk, Va., on the brief), for appellee.

Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and HARRY E. WATKINS, District Judge.

SOBELOFF, Chief Judge.

This appeal is directed chiefly to the sufficiency of the evidence to support the appellant's conviction under the first count of an indictment, for violating Section 5174 of Title 26 U.S.C. (Internal Revenue Code of 1954) by having in his custody and under his control a certain "distilling apparatus set up" which had not been registered. For this offense he was sentenced to imprisonment for two years, a penalty of $500.00 and fine of $1.00, as authorized by Section 5601 of Title 26 U.S.C.

It was shown at the trial that late on an evening in March 1958, in response to information that an illegal distilling operation was being carried on, County Police proceeded to a certain address in a residential area of Camellia Shores, Virginia. As they approached the house, two men fled from the adjacent garage. The officers pursued the appellant, who dived into a nearby lake. His clothing was saturated with mash even after his immersion.

Agents of the Alcohol Tax Division of the Internal Revenue Service, who were then called, found in the garage a large steel still; an accumulation of mash on the floor; sixty feet of rubber hose; and twelve large barrels, in one of which was spent mash, and in another 160 gallons of live mash ready for distillation. There were a water well and fire bricks which evidently had been used. A gasoline-driven pump was pumping mash from a barrel into an open field. The still was not then in operation, and the officers discovered no boiler, condenser or coils. No whiskey was on the premises. Dried mash had been tracked through the house, and cakes of yeast were found in the refrigerator.

That a still had been operated was clear enough, but it was equally plain that essential parts of the apparatus had been removed before the officers' arrival and that at the time of seizure the still was not ready to operate. Agents stated that with the distilling apparatus in the garage and various raw materials found on the premises, whiskey could be produced within two hours. However, this was explained to mean that to do so, it would have been necessary to connect the still to the domestic hot water heater, and to use the rubber hose as connecting pipe, and as a substitute for copper coils of a condenser.

Section 5174 provides that "every person having in his possession or custody, or under his control, any still or distilling apparatus set up, shall register such still or apparatus with the Secretary or his delegate immediately, upon its being set up * * *".

Appellant contends that he is not guilty of violating Section 5174 because the still was not "set up." He argues that for there to be a violation the still must be completely set up and capable of being operated; and that if a single part, however minor, is missing or disconnected, then no crime is committed. The Government, on the other hand, argues that it is enough to constitute a violation if the still is readily capable of being set up in an operating state.

We would have to reject the appellant's extreme contention, for there is authority in direct conflict with such a proposition. Williamson v. United States, 6 Cir., 1953, 208 F.2d 692, 693; Colasurdo v. United States, 9 Cir., 1927, 22 F.2d 934. The rule is as contended by the...