Patterson v. United States

• Decision Date: 10 February 1933
• Docket Number: No. 651,652.,651
• Parties: PATTERSON v. UNITED STATES. PHILBROOK v. SAME.
• Court: U.S. Court of Appeals — Tenth Circuit

62 F.2d 968 (1933)

PATTERSON v. UNITED STATES.

PHILBROOK v. SAME.

Nos. 651, 652.

Circuit Court of Appeals, Tenth Circuit.

January 9, 1933.

Rehearing Denied February 10, 1933.

William N. Jamieson and Thomas J. Sheehan, Jr., both of Omaha, Neb., for appellants.

S. M. Brewster, U. S. Atty., and Dan B. Cowie, Asst. U. S. Atty., both of Topeka, Kan.

Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.

COTTERAL, Circuit Judge.

The defendants appeal from convictions under an indictment which charged them with a transportation of whisky. Numerous errors are assigned for reversal.

Stress is laid on the refusal of a motion to direct a verdict, based on the alleged insufficiency of the evidence. We note the testimony of the several witnesses in order:

Deimler, a state investigator serving in Republic county, Kan., and other officers appear to have ordered 500 gallons of alcohol from some point in Nebraska, and awaited delivery. He and Federal Officer Bryant discovered the defendants near Belleville, Kan. Philbrook was driving a Pontiac coupé and Patterson a Chrysler truck. The truck was heavily loaded and bore the label "Grandma's Breakfast Food, United Food Corporation, Omaha, Nebraska." The sheriff of the county, one of his deputies, and the county attorney were stationed near this point. After following the defendants about two miles, Deimler and his companion took a cut-off road and intercepted the coupé, which showed a license in Patterson's name. They arrested Philbrook, the driver, turned him over to the sheriff, and went in search of the truck. The officers went to the place where the sheriff had seized it, and found fifty kegs of whisky stacked in a cornfield by the roadside. There was an odor of liquor in the truck, which bore imprints of kegs. Patterson was then in the custody of the sheriff. Both defendants gave assumed names.

Deimler and Bryant took the defendants to Topeka. On the way there, Philbrook said that "he had been framed, that stuff had been ordered down there and we were on the spot waiting for him." He also said he drove the coupé behind the truck so that "if anyone went to go around him he could run them in the ditch." There was a further conversation in which Patterson said "some bootleggers in the county had framed him; they had ordered this liquor down," and when asked why he didn't bring alcohol, said "he was a little leary about it, because he didn't answer the phone; his brother had answered it. He thought he would run this whiskey down and see how things were set."

Deimler found truck trucks where the whisky was discovered, which corresponded with the tires on the truck. He also found footprints which the sheriff found to measure the same as Patterson's shoes.

The testimony of Sheriff Nordman was corroborative. He went with the county attorney to look for the truck and found it five and a half miles east and one mile north of Belleville. He smelled fumes of liquor coming from the truck. Patterson was lying on the running board. He denied having any liquor. The sheriff and the officers inspected the adjacent ground. It appeared the truck had backed up in a gateway leading to the corner of the field. The tire tracks tallied with those of the truck. In the field he found the fifty kegs of liquor covered with hay and cornstocks. The shoe tracks measured the same as those of Patterson's shoes. The liquor was reloaded and brought to Belleville.

The testimony of Perry, the county attorney, confirmed that of the other officers. The truck smelled of whisky and showed ring marks. On the way to Belleville, the witness asked Patterson what he was doing out there so early in the morning, and he answered he delivered a load of stock feed for some farmer in Republic county, giving his name, but he didn't know where the farmer lived as he came and left the same night. At the jail, Patterson gave a fictitious name, but later his correct name.

Counsel for appellants contend the proof of the circumstances was insufficient, under the settled rule applicable to circumstantial evidence. A conviction is required to be based on substantial evidence, as distinguished from suspicion. The evidence should be more consistent with guilt than innocence, and exclude any reasonable hypothesis of innocence. Moore v. United States (C. C. A.) 56 F.(2d) 794; Stilson v. United States, 250 U. S. 583, 40 S. Ct. 28, 63 L. Ed. 1154; Van Gorder v. United States (C. C. A.) 21 F.(2d) 939; Enrique Rivera v. United States (C. C. A.) 57 F.(2d) 816. But the evidence met the requirements. There was no denial or explanation of the circumstances, as the defendants stood on the evidence of the government. We are quite content to hold that the chain of circumstances warranted the verdict of the jury.

An alleged deficiency in the evidence was the failure to introduce the whisky. This was unnecessary. The witnesses testified to the fact that whisky was found, and production of it would have been merely cumulative.

The...