McCurry v. United States
| Citation | 281 F. 532 |
| Decision Date | 13 February 1922 |
| Docket Number | 3747. |
| Parties | McCURRY et al. v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Miller O'Connor & Miller, of Livingston, Mont., for plaintiffs in error.
W. H Meigs, Asst. U.S. Atty., of Helena, Mont.
Before GILBERT, MORROW, and HUNT, Circuit Judges.
The indictment filed in the court below contained three counts. The first count charged the appellants with having made and fermented a certain mash fit for the production of spirits on premises other than a distillery duly authorized according to law; the second count charged the appellants with having failed and neglected to register a certain still, set up which they had in their possession and custody; and the third count charged them with having carried on the business of distillers without having given the bond required by law. Upon the trial of the cause the appellants were convicted upon the second and third counts of the indictment, and were found not guilty upon the first count. Judgment was entered accordingly, and from this judgment the appellants prosecute this writ.
The appellants contend that the lower court erred in instructing the jury at the trial that evidence tending to show the probability of guilt of the defendants was sufficient to warrant a conviction. This is an erroneous statement of the court's instruction. The counsel for the appellants in his argument to the jury had said that the jury could not convict on suspicion. The court said that 'that is true but he (counsel) went on to say that you (the jury) could not convict on probabilities. ' There the court interrupted counsel, and stated that 'that is not the law, because, after all, all cases are determined upon probabilities. ' The court thereupon gave the following instruction:
The court had previously instructed the jury:
'That these defendants are presumed to be innocent, and that presumption requires that you acquit them; unless, after your review of all the evidence, you believe it overcomes to a degree that satisfies you that they are guilty beyond a reasonable doubt, it is your duty to...
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