Pilgreen v. United States

• Citation: 157 F.2d 427
• Decision Date: 30 September 1946
• Docket Number: No. 13382.,13382.
• Parties: PILGREEN v. UNITED STATES
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

157 F.2d 427 (1946)

PILGREEN v. UNITED STATES

No. 13382.

Circuit Court of Appeals, Eighth Circuit.

September 30, 1946.

Bert B. Larey and Paul Jones, both of Texarkana, Ark., for appellant.

Thomas C. Pitts, Asst. U. S. Atty., of Fort Smith, Ark. (R. S. Wilson, U. S. Atty., of Van Buren, Ark., and Charles A. Beasley, Jr., Asst. U. S. Atty., of Fort Smith, Ark., on the brief), for appellee.

Before SANBORN, THOMAS, and JOHNSEN, Circuit Judges.

THOMAS, Circuit Judge.

An indictment in three counts was returned against the appellant and Frank Huber. Huber pleaded guilty to each count. The appellant was tried, found guilty by the jury under count two and not guilty under counts one and three. He appeals from the sentence imposed by the court.

The first count of the indictment charged that the defendants had in their possession and custody an unregistered still, in violation of 26 U.S.C.A. Int.Rev.Code, § 2810; count two charged that defendants engaged in and carried on the business of a distiller of spiritous liquors without having given bond and with intent to defraud the United States of the tax on the spirits distilled by them, in violation of 26 U.S.C.A. Int. Rev.Code, § 2833; and count three charged that defendants made and fermented 100 gallons of mash, wort and wash, fit for distillation and for production of spirits and alcohol, on premises other than an authorized distillery, in violation of 26 U.S. C.A. Int.Rev.Code, § 2834.

Two principal contentions are presented on appeal: 1. The verdict is inconsistent, and 2. The evidence does not support the verdict.

The first contention is that the same facts were relied upon to support the three counts of the indictment, and that since a verdict of not guilty was returned on counts one and three and of guilty on count two, the latter will not be allowed to stand. Appellant relies upon cases decided prior to 1932, such as Speiller v. United States, 3 Cir., 31 F.2d 682, and Boyle v. United States, 8 Cir., 22 F.2d 547. The teaching of the cases relied upon by appellant is not now the law in the federal courts. Consistency in the verdict of a jury is not necessary. Where different offenses are separately charged in the counts of a single indictment and the same evidence is offered in support of each, an acquittal on one count can not be pleaded as res judicata of the others. Dunn v. United States, 1932, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356, 80 A.L.R. 161; United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 88 L.Ed. 48; Foshay v. United States, 8 Cir., 68 F.2d 205; Audett v. United States, 8 Cir., 132 F.2d 528; Stein v. United States, 9 Cir., 153 F.2d 737, 744; United States v. Hare, 7 Cir., 153 F.2d 816, 819.

No exceptions were taken to the instructions to the jury or to the rulings of the court on the admission or rejection of evidence. The insufficiency of the evidence to support the verdict was raised by motions for a directed verdict and for a new trial.

In considering the sufficiency of the evidence to support the verdict of the jury, an established rule is that the appellate court must take that view of the evidence most favorable to the government; must give to the government the benefit of all inferences which reasonably may be drawn from the evidence; and must not undertake to determine the weight of the evidence or the credibility of the witnesses. Affronti v. United States, 8 Cir., 145 F.2d 3, 5; Egan v. United States, 8 Cir., 137 F.2d 369, 375, 376; Miller v. United States, 8 Cir., 138 F.2d 258, 259.

Applying this rule to the record here, the evidence...