Moore v. United States, 7906.
| Citation | 271 F.2d 564 |
| Decision Date | 02 November 1959 |
| Docket Number | No. 7906.,7906. |
| Parties | Arthur MOORE, Appellant, v. UNITED STATES of America, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
George W. Vakos, Virginia Beach, Va. (Richard G. Brydges, Virginia Beach, Va., on brief), for appellant.
W. F. Powers, Jr., Asst. U. S. Atty., Norfolk, Va. (John M. Hollis, U. S. Atty., Norfolk, Va., on brief), for appellee.
Before SOBELOFF, Chief Judge, BOREMAN, Circuit Judge, and FIELD, District Judge.
The indictment in this case, based upon Title 26 U.S.C. §§ 7302 and 5685(b), Internal Revenue Code, charged that Waverly Jordon, Wilbur Jordon, Albert Cecil Foreman, Milton Foreman and Arthur Moore "did unlawfully and wilfully have or possess certain property, to-wit: One low pressure boiler and one gasoline pressure tank, which said property was intended for use in violating the provisions of the Internal Revenue laws or regulations prescribed under such law; that is to say, the said property was designed and intended to be used for the unlawful distillation of spirits * * *." The case as to all five defendants was tried before the District Court without a jury. The defendant, Arthur Moore, was convicted and the four other defendants were acquitted. From his conviction and sentence Arthur Moore appeals.
Following presentation of the Government's case, counsel for Moore made a motion for a judgment of acquittal, which motion was overruled. Moore did not testify in his own behalf. Whether the Government's evidence was sufficient to sustain the conviction for possession of property designed and intended for use in violation of the Internal Revenue laws pertaining to distilled spirits is the only question presented for determination.
As briefly as possible, we shall review the facts as disclosed by the evidence, viewed in the light most favorable to the Government. Johnson v. United States, 4 Cir., 1959, 265 F.2d 496; Linden v. United States, 4 Cir., 1958, 254 F. 2d 560, 567.
On January 15, 1959, at approximately six o'clock in the evening, certain investigators from the Virginia Alcohol Beverage Control Board and the Alcohol and Tobacco Tax Division of Internal Revenue raided an illicit still near Head River Road in Princess Anne County, Virginia. During the raid several persons were arrested, but the officers remained in the area for several hours keeping a dwelling house under surveillance. One of the state officers, Howell, testified that at approximately 10:15 or 10:30 he left the area where the officers had been concealed and started up Head River Road toward their automobile. As he neared a dead-end road which intersects with Head River Road, he observed the headlights of an automobile traveling along the dead-end road toward the intersection. These headlights were turned off approximately one hundred yards from the highway and the vehicle then proceeded in darkness to approximately within ten feet of the intersection where it stopped. Howell further testified that one man got out of the right (or passenger) side of the automobile, went to the rear, removed from the trunk a large object which appeared to be a barrel; that just as this person placed the object in the bushes, Howell flashed his flashlight on the automobile, a 1952 Chevrolet. The person who got out of the car fled and he was neither identified nor apprehended. Arthur Moore was discovered in the automobile and was arrested.
The officers then drove their car (which had been concealed in another lane close by) directly behind the Chevrolet and observed the lights of another automobile coming along the dead-end road toward the highway. This vehicle proved to be a truck in which the four other indictees were riding. One of the officers had remained in the official car while others were hiding in the bushes and when the truck came to a stop, the officers who then approached the truck observed therein what they described as a "low pressure boiler". The four occupants of the truck were also placed under arrest.
The object which had been placed in the bushes was described as a twenty-gallon low pressure gasoline tank, with the "valve stem out of an inner tube placed about middle way welded in it" and the other end having a three-fourth inch outlet. The witness stated: "That valve stem is to put your gas in and hook an automobile tire pump onto it and pump it up, and when the gas comes out, it comes out in vapor form." Officer Howell testified that he had been working with the Virginia A. B. C. Board for nine years ("working whiskey stills, mostly"); that he had seen numbers of "these pressure tanks" and that he had "never seen this type tank used for anything except an illegal distillery".
As shown, all of the defendants named in the indictment were charged with possession of the tank found in the bushes and the boiler found in the truck. The witnesses for the Government admitted that there was no evidence to connect these five defendants with the still which had been raided earlier in the evening, with the operators who were apprehended when the still was raided, or with distilling activities being carried on in that general area. While Moore did not testify at the trial, he denied to the officers at the time of his arrest that the tank found in the bushes was in the Chevrolet and stated that he did not know the name of the man who escaped. The record is strangely silent as to any further conversation between Moore and the arresting officers concerning any explanation, or lack thereof, of his presence in that vicinity, about twenty-five miles from his home.
Albert Foreman, one of the defendants, testified that he was driving the truck in which the boiler was found; that his co-defendants, Wilbur Jordon and Milton Foreman, had been hunting rabbits in the afternoon of the day on which they were arrested; that they informed him of finding the boiler in the woods and requested him to haul it to his home in his truck; that the boiler weighed about two hundred pounds, was old, rusted and had a hole cut in it about the size of an axe blade; that they expected to sell it for junk along with some other junk which he had collected at his home about three miles away. The other occupants of the truck told substantially the same story. According to their statements, they were not even acquainted with Moore. Certainly there was no evidence to show that Moore had any...
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