Scoggins v. United States

• Citation: 255 F. 825
• Decision Date: 27 January 1919
• Docket Number: 4871.
• Parties: SCOGGINS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

255 F. 825

SCOGGINS v. UNITED STATES.

No. 4871.

United States Court of Appeals, Eighth Circuit.

January 27, 1919

Gardner K. Oliphint, of Little Rock, Ark. (James E. Hogue, Douglas Heard and Edward B. Downie, all of Little Rock, Ark., on the brief), for plaintiff in error.

W. H Rector, Asst. U.S. Atty., of Little Rock, Ark. (W. H. Martin U.S. Atty., of Hot Springs, Ark., on the brief), for the United States.

Before SANBORN, HOOK, and SMITH, Circuit Judges.

SANBORN Circuit Judge.

The defendant below was indicted and convicted of selling whisky in less quantities than five wine gallons at the same time without paying a tax as a retail liquor dealer. Sections 5971 and 5973, 6 U.S. Compiled Statutes 1916 Annotated. He complains that the court refused to instruct the jury to return a verdict in his favor at the close of the evidence. The United States introduced testimony to the effect that the defendant received whisky in packages regularly up to November, 1915; that in that month he received two packages one marked 24 pints, consigned to Jack McGee, and the other consigned to J. Burke; that these packages were delivered in an old outhouse where a German used to crate eggs; and that prior to the delivery of these packages the defendant had received other packages of like character, consigned to himself. The United States called as a witness one McDaniel who testified that he purchased one bottle of whisky of the defendant in November, 1915, on a Saturday night; that he did not give him the money, but told him he would see him Tuesday; that on Tuesday he offered him his money, but the defendant said he was not selling whisky and refused to take it; and that meanwhile the defendant had been arrested. Being asked how he got the whisky, this colloquy followed:

'A. I saw him on a side street, and took it out of his pocket, and told him I would see him Tuesday.

'Q. How come you to do that? A. Well, I saw the whisky, and took it out of his pocket.

'Q. What did you say about paying him? A. I told him I would see him Tuesday. * * * '

On cross-examination he testified, among other things, in this way:

'Q. Now, did you not put your arms around him and pull it out of his pocket? A. Yes; I did.

'Q. You did not say anything to him about paying for it? A. I did. I told him I would see him Tuesday.'

There was no other testimony tending to show any sale of any whisky by the defendant, if, indeed, this so tends. The defendant testified that he never sold any whisky to McDaniel or to any other person; that one Saturday night he and McDaniel had been drinking earlier in the evening, and he met him again; that he had a little whisky in a bottle in his pocket; that McDaniel grabbed hold of him, took it out of his pocket, and commenced to drink it right on the sidewalk; that he persuaded him to go into the alley, where they both took a drink; that he asked McDaniel to give the bottle back to him, but that he put it in his pocket; and that nothing was ever said between them about paying for it. The defendant and Mr. Burke testified that the package of whisky consigned to Burke was Burke's, and was not the defendant's; that Burke bought it, and paid $12 for it; that the defendant did not contribute to the purchase of it, and had no interest in it; that Burke gave him an order for it, and told him to take it out and take care of it for him. The defendant testified that he never received the package of whisky consigned to McGee, and that he never had any interest in it. Mr. Ernest Cook testified that McGee was his brother-in-law; that he and McGee occasionally bought whisky together, and had it consigned, sometimes to one of them, and sometimes to the other; that the package addressed to McGee was Cook's; that he told the express driver to deliver it to the defendant, but that it was in fact delivered to him (Cook). Mr. Burke and Mr. Cook both testified that McDaniel told them that he never bought any whisky of the defendant. There was no other substantial evidence in this case, and upon the testimony which has been recited the jury and the court below have founded a judgment against the defendant, and a sentence against him of a fine of $100 and imprisonment for a year and a day.

But it is indispensable to the maintenance of this verdict and judgment that there should have been substantial evidence of a sale or of an offer to sell some of the whisky by the defendant.

'A sale is a contract for the transfer of property from one person to another for a valuable consideration.' 7 Words and Phrases, 'Sale,' pp. 6291, 6292.

'To constitute such a sale, there must be the assent of the two parties; there must be a vendor and a vendee. But no words need be proved to have been spoken. A sale may be inferred from the acts of the parties, and no disguise which the parties may attempt to throw over the transaction, with a view of evading the penalty of the law, can avail them, if in truth such sale is found to...