Simpkins v. United States

• Decision Date: 27 June 1935
• Docket Number: No. 3865.,3865.
• Citation: 78 F.2d 594
• Parties: SIMPKINS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

78 F.2d 594 (1935)

SIMPKINS v. UNITED STATES.

No. 3865.

Circuit Court of Appeals, Fourth Circuit.

June 27, 1935.

Before PARKER and SOPER, Circuit Judges, and CHESNUT, District Judge.

Carl C. Sanders, of Beckley, W. Va., and James Damron, of Huntington, W. Va. (Harry Capehart, of Welch, W. Va., on the brief), for appellant.

George I. Neal, U. S. Atty., of Huntington, W. Va. (L. R. Via, Asst. U. S. Atty., of Huntington, W. Va., and Charles M. Love, Jr., Asst. U. S. Atty., of Charleston, W. Va., on the brief), for the United States.

CHESNUT, District Judge.

The appellant, Robert L. Simpkins, with three others, was indicted by the grand jury for the Southern District of West Virginia, on January 15, 1935, for a violation in May, 1934, of United States Code, title 26, § 404, 26 USCA § 404 (Rev. St. § 3296), which prohibits the removal of untaxpaid liquor from a distillery to a place other than a warehouse provided for by the Internal Revenue Laws, and the concealment of such liquor known to have been so removed. The indictment contained two counts, the first charging the unlawful removal of the liquor, and the second, the unlawful concealment thereof. Upon a jury trial the defendant was acquitted on the first count, but convicted on the second. From the sentence and judgment of three years' imprisonment and $5,000 fine imposed by the court, this appeal was taken.

The defendant attacked the indictment by plea in abatement and separately by demurrer on the ground that the statute had been repealed by the adoption of the 21st Amendment (repealing the 18th Amendment) on December 5, 1933. The point was, however, not pressed in oral argument evidently in view of the recent decision of this court to the contrary in Case v. Alderson, 76 F.(2d) 25. We have concluded, however, that the judgment must be reversed for materially prejudicial error in the charge to the jury and refusal of instructions requested by the defendant and the admission of certain evidence. The reasons for this conclusion follow.

In substance, the government's testimony in support of the particular charge against the defendant is this: The defendant was a duly elected and acting justice of the peace of the state of West Virginia on May 31, 1934. On that date two special constables arrested Sam Ratliff and Frank Surgeon (two of the three other defendants named in the indictment), for violation of the liquor laws of the state of West Virginia and at the time seized 200 pints of untaxpaid liquor in their automobile. Ratliff and Surgeon, together with the liquor, were immediately taken by the constables before the defendant as justice of the peace. The hearing was postponed for a few days, and in the meantime the defendant had the liquor removed from his official office to his residence (a boarding house) about a mile away. There was also testimony on behalf of the government tending to show that on the next morning the defendant sold and delivered 5 gallons of this liquor to one Simon Magurin for $12.50. Three or four days later Ratliff and Surgeon were given a hearing by the defendant and released on the ground that their arrest and the seizure of the liquor was illegal because the constables did not have a search warrant. Their automobile and the pistols therein found were returned to them but the liquor was not returned. There was also evidence tending to show some irregularity in the entries on the magistrate's docket kept by his clerk, with regard to the case. There was no direct evidence tending to show that arrest and seizure of the liquor was directed and inspired by the defendant, but nevertheless the evident theory of the government in the prosecution was that the defendant in receiving and storing the liquor in his residence and subsequently selling a part thereof, was acting only colorably as a justice of the peace and that his real motive and intent in receiving and keeping the liquor was for purposes of private profit. On the other hand, the contention of the defendant supported by testimony of himself and others was that throughout the transaction he was acting officially and in entire good faith in accordance with his duties as justice of the peace as he understood them and that the liquor received by him and placed in his home was destroyed, and none of it sold, shortly after the dismissal of the case, on his understanding that the applicable law made it improper to return the contraband liquor to the persons from whom it had been seized.

It is apparent that the issue thus created for the determination of the jury was whether the defendant was acting throughout officially in good faith or only colorably as a justice of the peace and really for his private profit. Upon the conclusion of the testimony counsel for the defendant requested the District Judge to instruct the jury that if they believed from the evidence that the defendant "took possession of the 200 pints of intoxicating liquor in question and had it removed to his dwelling in order to preserve the same, and thereafter, after dismissal of the charge against Frank Surgeon and Sam Ratliff, caused the said 200 pints of liquor to be poured out and destroyed," the jury should find the defendant not guilty. They also asked an instruction to the effect that the defendant "had the right to take possession of the 25 gallons of intoxicating liquors in question and to store the same, and to have the same poured out and destroyed after dismissal of the charges against Sam Ratliff and Frank Surgeon without violating the law as charged in the indictment." The District Judge refused these requested instructions to the jury, with a notation of a reference to his charge as given to the jury. On examination of the whole charge, we find that it did not contain the substance of the instructions requested and on the contrary the jury was instructed in effect that it was illegal for the defendant to have kept the liquor and to have destroyed it after dismissal of the case, with the very clear implication that the defendant was legally required to have returned the liquor to Ratliff and Surgeon on dismissal of the charges against them.

In our opinion the jury should have been instructed substantially as requested by the defendant's counsel that the controlling issue in the case was whether the defendant was acting throughout in good faith and in accordance with his understanding of the applicable law. The issue in the case was not merely whether this defendant failed to return the liquor after dismissal of the charges but was whether in doing so he acted in good faith and officially. If the jury found that he had destroyed the liquor without selling any of it or otherwise using it for personal benefit, and that in doing so he was acting in good faith even though possibly mistakenly as to the applicable law, then very clearly the defendant was not guilty of concealment of the liquor as charged in the indictment. The failure to so instruct the jury constituted materially prejudicial error which requires a reversal of the judgment. The defendant's request for a directed verdict in his favor was, we think, properly refused by the District Judge.

As the reversal of the case will permit a new trial of the concealment charge, it is important that we determine the admissibility of certain evidence admitted by the District Judge in support of the Government's case, the admissibility of which was duly excepted to on behalf of the defendant and is here challenged by appropriate assignments of error. In our opinion the Government's testimony as admitted by the trial judge took entirely too wide a range with regard to collateral matters not directly relating to the particular charge. The defendant was not indicted for conspiracy.

In presenting the Government's evidence in chief against the defendant, several witnesses were permitted to testify to miscellaneous and unrelated transactions in liquor by the defendant, involving purchases or sales by him, with various persons and in varying quantities, some less and some more than 5 gallons in amount. Generally such liquor was referred to as untaxpaid liquor and apparently, although not very clearly, it probably involved the violation of the federal internal revenue laws as well as violation of the liquor laws of West Virginia. The time of these several occurrences in most instances was not definitely fixed and some of them may have been more than a year...