Vilson v. United States, 6828.

• Decision Date: 28 November 1932
• Docket Number: No. 6828.,6828.
• Citation: 61 F.2d 901
• Parties: VILSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

61 F.2d 901 (1932)

VILSON v. UNITED STATES.

No. 6828.

Circuit Court of Appeals, Ninth Circuit.

November 28, 1932.

Barnett H. Goldstein, of Portland, Or., for appellant.

Geo. Neuner, U. S. Atty., and Rex Kimmell, Asst. U. S. Atty., both of Portland, Or.

Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.

NETERER, District Judge.

To reverse conviction on three counts, (a) unlawful possession of intoxicating liquors, (b) unlawful manufacture of intoxicating liquors, (c) unlawful possession of a still and equipment designed for the manufacture of intoxicating liquors, this appeal is prosecuted. The issue is presented on denial of a motion for directed verdict.

In consideration of the evidence on a motion for a directed verdict, the evidence must be considered in its most favorable aspect to the appellee. United States v. Scarborough (C. C. A.) 57 F.(2d) 137; Knable v. United States (C. C. A.) 9 F.(2d) 567; see, also, Burton v. United States, 202 U. S. 344, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 362; Kelly v. United States (C. C. A.) 258 F. 392. If there is substantial evidence it must be submitted to the jury, whose function it is to consider and weigh it, and this includes credibility of witnesses. Montana Tonopah Mining Co. v. Dunlap (C. C. A.) 196 F. 612; United States v. Burke (C. C. A.) 50 F.(2d) 653; United States v. Lesher (C. C. A.) 59 F.(2d) 53; Toledo, St. L. & W. R. Co. v. Howe (C. C. A.) 191 F. 776; Woodward v. Atlantic Coast Line R. R. (C. C. A.) 57 F.(2d) 1019; Engstrom v. De Witt (C. C. A.) 58 F.(2d) 137.

The record not only shows there is substantial evidence to sustain the charges, but tended to show that defendant aided and abetted others in the offenses on which defendant is convicted, and that defendant engaged with others in a common conspiracy to do such acts and in either case each of the parties so engaged is guilty of the offenses in issue. Samich v. U. S. (C. C. A.) 22 F.(2d) 672, at page 673; Shively v. United States (C. C. A.) 299 F. 710. The common object of the associated persons forms a part of the res geste, and evidence was admissible, even though conspiracy was not charged. Tuckerman v. United States (C. C. A.) 291 F. 958. All of which was for the jury's consideration in determining the guilt or innocence; and under section 550, title 18, USCA, as aider and abettor he is guilty as principal.

It must be assumed the issue was submitted to the jury upon the applicable legal aspects, and full and fair consideration of the record convinces us that the judgment must be affirmed. The still was found in a shed or garage on premises consisting of a house, barn and a shed or garage, and also a small garden, on the Marquam road. The premises had been under surveillance for some time by government agents, who were reliably informed that a still was being operated on these premises. May 26, they saw the defendant working "around in the garden patch." On May 27, they saw a Ford coupé with green wheels come out of the gate about 5:30 p. m., which they later found parked in front of the house where the defendant lived, the automobile being registered in the name of another living at the same place. On May 28, at 8 or 9 o'clock p. m., they saw defendant's car, a black Buick, inside of the yard between the house and gate, and about 9 o'clock p. m., they saw two men walk back and forth on the porch smoking cigarettes, and also saw them walking to a doorway of the garage or shed, open the door, and saw "a flare came up." This is the place where the still was. Saw them walking back to the shed several times between 9 and 9:30. The defendant's Buick car "pulled out" about 9:30. A woman was sitting in defendant's car. One man came...