Rhodes v. United States, 5989.

• Decision Date: 23 April 1930
• Docket Number: No. 5989.,5989.
• Citation: 39 F.2d 1
• Parties: RHODES v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

39 F.2d 1 (1930)

RHODES v. UNITED STATES.

No. 5989.

Circuit Court of Appeals, Ninth Circuit.

March 17, 1930.

Rehearing Denied April 23, 1930.

Vanderveer, Bassett & Levinson, of Seattle, Wash., for appellant.

Anthony Savage, U. S. Atty., and Jeffrey Heiman, Asst. U. S. Atty., both of Seattle, Wash.

Before DIETRICH and WILBUR, Circuit Judges, and KERRIGAN, District Judge.

WILBUR, Circuit Judge.

The defendant was convicted on each of three charges in an indictment concerning intoxicating liquor. The first count charged the defendant with carrying on the business of a rectifier of spirits without having paid the tax; the second count charged him with the unlawful possession of two hundred gallons of whisky; and the third count charged him with maintaining a nuisance. On the first and third counts he was sentenced to a term of eight months in the county jail, to run concurrently, and to pay a fine of $100 in addition under count 1, and of $300 under count 2. The appellant's principal point is that the evidence fails to substantiate any one of the charges. It appears from the evidence that on November 23, 1928, a federal prohibition officer saw a truck near Newcastle, in the state of Washington, and followed it to the city limits of Seattle and on through to a ranch owned by the defendant's wife. There two men concealed some liquor underneath the barn and returned to Seattle. At 10 o'clock the next day a search warrant was obtained, and the Beal ranch was searched and the following was found: Two hundred gallons of moonshine whisky (one hundred gallons colored and one hundred gallons uncolored) in ten-gallon kegs; some empty kegs and some empty bottles; a bottle of juniper such as was used for the purpose of rectifying, a siphon hose such as was used for drawing the liquor out of the ten-gallon kegs and gallon jugs, some bottles of flavoring extracts, silicate of soda, a carrier used to hold filtering paper for filtering liquor, and some filtering papers.

It is to be inferred from the testimony of the prohibition officer that these materials found with the whisky were such as were used for rectifying liquor. The prohibition officers remained on the premises until November 26th at 3:45 p. m. At first they were concealed north of the barn, but on the 24th Mrs. Rhodes came to the premises and admitted them to the basement of the house. On the 26th Mrs. Rhodes returned to the house, and at 3 o'clock in the afternoon the defendant came there. The prohibition agents were concealed and heard the conversation between the defendant and Mrs. Rhodes continuing for about half an hour. During the conversation, Mrs. Rhodes asked him why he did not get the liquor off the premises, and he replied that he would get it off when he got ready to do so. He stated it was his liquor, and told her to leave it alone. She said, "If you don't move the liquor I will smash it up myself." The defendant replied, "If you smash it up I will drill you full of holes and if there are any other stool-pigeons around here I will drill them full of holes." He stated he was paying the prohibition agent $50 a month for protection, and had been doing so for four months, and was also paying the sheriff and the police department for protection, and had been for the last four months. When she stated she would call in the federal officers, he replied, "If you have any stool-pigeons around here I will drill them, and will also drill you." Immediately thereafter he was placed under arrest. He stated to the prohibition officers that the liquor in the barn belonged to him but he denied having made the statement which they had overheard concerning his payment to a prohibition officer, who was one of the arresting officers. He went to the barn and helped to destroy the liquor and again stated that the liquor belonged to him, that he had colored it, and that all the paraphernalia belonged to him.

The appellant testified that he and Mrs. Rhodes were married on the 8th of August, 1928, separated on the 29th of October, 1928, and...