Walker v. United States

• Decision Date: 12 June 1939
• Docket Number: No. 4423.,4423.
• Citation: 104 F.2d 465
• Parties: WALKER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

104 F.2d 465 (1939)

WALKER et al. v. UNITED STATES.

No. 4423.

Circuit Court of Appeals, Fourth Circuit.

June 12, 1939.

R. E. O'Connor, of Charleston, W. Va., and Connor Hall, of Huntington, W. Va. (Charles E. Mahan and R. T. Hubard, both of Fayetteville, W. Va., on the brief), for appellants.

John W. Hereford, Asst. U. S. Atty., of Huntington, W. Va. (Lemuel R. Via, U. S. Atty., of Huntington, W. Va., and Charles M. Love, Jr., Asst. U. S. Atty., of Charleston, W. Va., on the brief), for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

SOPER, Circuit Judge.

The appellants, Harry S. Walker, Peter McKay and Herbert Hatfield, together with Cecil Vandell and Ira Webb, were indicted for conspiring to commit divers offenses against the United States, and for doing certain acts in pursuance of the conspiracy, in violation of 18 U.S.C.A. § 88. It was charged that they conspired: (1) to violate 26 U.S.C.A. § 1184 by carrying on the business of a distiller without giving bond and with intent to defraud the United States of the tax on distilled spirits; (2) to violate 26 U.S.C.A. § 1150 by carrying on the business of a retail liquor dealer without payment of the special tax as required by law; (3) to violate 26 U.S.C.A. § 1287 by removing and aiding and abetting in the removal of distilled spirits, on which the tax had not been paid, to a place other than a distillery warehouse or other bonded warehouse provided by law; (4) to violate 26 U.S.C.A. § 1441 by removing, depositing and concealing spiritous liquors with the intent to defraud the United States of the tax thereon; and (5) to violate 26 U.S.C.A. § 1440 by having in their possession and custody spiritous liquors for the purpose of selling the same without payment of the tax imposed thereon by law.

The overt acts charged to have been done pursuant to the conspiracy were as follows:

(1) That McKay, a constable of Fayette County, West Virginia, and Walker, a Justice of the Peace of said County, seized in their official capacity one quart of non-tax paid whiskey from one Russell McCallister, and that Hatfield, representing himself to be an officer of the United States Government, assisted in the seizure of said whiskey, and that McKay, Walker and Hatfield did conceal and assist in concealing said whiskey;

(2) That McKay, Walker, Hatfield and Vandell unlawfully and feloniously transported, possessed, bought, sold and transferred one quart of distilled spirits without having affixed to the immediate container the stamp evidencing payment of taxes thereon;

(3) That Webb purchased from one George Davis fifteen cases of tax paid liquor and sold the same without paying the tax required of a dealer in spiritous liquors, and that McKay was present and assisted therein;

(4) That McKay and Vandell did unlawfully and feloniously sell and transfer to Edward Pugh one pint of spiritous liquor, without having affixed to the immediate container thereof the stamp denoting payment of taxes;

(5) That Walker seized four gallons of non-tax paid whiskey, and together with McKay, did sell the same without paying the tax thereon and without the containers thereof having stamps affixed as required by the revenue laws of the United States.

At the close of all the evidence, the court directed a verdict of acquittal on behalf of Webb, and the jury found the others guilty. Subsequently, the court granted a new trial and the District Attorney entered a nolle pros as to Vandell. Walker, McKay and Hatfield were each sentenced to a year and a day in prison. On their behalf a reversal of the judgment is sought on the grounds that rulings on the admissibility of evidence were erroneously made, that the evidence was insufficient to prove any of the crimes charged in the indictment, and that there were errors in the charge to the jury.

The Government asks that the conviction be affirmed on the ground that the evidence offered by it substantially proved the following facts during the pendency of the conspiracy from December 1, 1935 to September 1, 1938, as charged in the indictment. Walker was a justice of the peace and McKay a constable for Fayette County, West Virginia. The jurisdiction of the two men, however, lay within separate districts of the county, and McKay had no official powers in Walker's district except when executing therein an order of the justice of the peace for his own district. Five places were being operated in Walker's district for the illegal sale of liquor. Walker and McKay frequently went to these places for free liquor, most of which they consumed on the premises. Walker frequently drank to excess and was on one occasion convicted of drunkenness, and on another, of drunken driving. McKay and Walker did nothing to prevent the illegal sale of liquor at these five places, but continually arrested the customers. After convicting the customers of drunkenness, they would collect fines of $11.50 to $12.50 from each of them.

On January 25, 1936 McKay brought Hatfield, a coal miner who was not well known in this locality, to Walker's office. The three of them, together with Vandell, then went in Walker's car to a saloon called Big Bend. After arresting two or three people outside, Hatfield entered and said that he was a revenue agent from Baltimore sent to raid the place. Davis, the proprietor, recognized Hatfield, threw him out of the building and sent for the State Police to have him arrested for impersonation. Meanwhile, McKay and Vandell on the outside continued to arrest persons whom they charged with drunkenness.

Later the same evening, Walker, McKay and Hatfield visited a place run by one Morris at Winona. Here they again represented Hatfield to be a federal agent from Baltimore and searched the house under the pretense of possessing a search warrant. Upon finding two-thirds of a quart of non-tax paid whiskey in the coat pocket of one Pitzenberger, a guest, they arrested Morris and Pitzenberger, who were taken to Walker's office, immediately tried, and found guilty of "being drunk on a public highway", and fined $11.50 each.

Walker then drew a warrant directing McKay to search the "Edgewood Filling Station" operated by McCallister. Hatfield swore to the information of the warrant without any knowledge of the place. The three then went to the filling station, aroused McCallister and his wife, introduced Hatfield as a federal agent from Baltimore, and searched the building. A gallon and a half of moonshine and six or seven pints of bottled in bond liquor were discovered. McCallister and his liquor were taken to Walker's office where the former paid $40 and got a receipt therefor, but was docketed as having been fined $5 and costs of $6. After they all had imbibed some of McCallister's liquor in his presence, Hatfield returned the released prisoner to his home. No part of the seized liquor was turned over to the sheriff of Fayette County or to the West Virginia Liquor Control Commission, as is required by State law.

About a year later, Walker and McKay returned to McCallister's filling station, which they again searched. Seven pints of bonded whiskey were discovered, but upon McCallister paying them $5, they left the house without taking the whiskey and never troubled him again.

On August 9, 1937 Walker and Hall, another constable, found a keg containing four gallons of moonshine whiskey at the rear of the home of one Nelson. Mrs. Nelson and her sister were arrested and taken together with the whiskey to Walker's office. The following morning the keg had disappeared from Walker's office and was not seen again for several months until it was recognized being used as a cider container at Walker's home.

In February or March, 1937, Walker and Constable Hall searched the home of one Jones and confiscated sixteen pints of tax paid liquor. This liquor also was never turned over to the proper authorities. Walker was seen to take several drinks of it and for three or four days was on a drinking spell.

Evidence of the following collateral facts was introduced concerning the conduct of McKay and the status of Webb and Vandell in the conspiracy. During the years 1932 to 1935, inclusive, McKay was almost constantly at the home of Vandell, who sold non-tax paid liquor there in the presence of McKay. Vandell used McKay's car to haul raw materials for moonshine into the mountains, and to bring the finished product from the mountains to his house. McKay was present during some of these operations, and was also present in Webb's store when Kentucky moonshine was delivered there. McKay, in his official capacity, seized a great deal of non-tax paid liquor, some of which he took to his home and drank.

We consider first whether there was sufficient evidence to take the case to the jury. In our opinion the evidence was insufficient to sustain the charge first mentioned, that the appellants conspired to carry on the business of a distiller with intent to defraud the United States of taxes in violation of 26 U.S.C.A. § 1184, and this charge has apparently been abandoned for lack of evidence, for it is not urged as a basis for sustaining the convictions.

With respect to the second charge, the Government contends that Walker's and McKay's wilful failure to prevent the illicit sale of non-tax paid liquor at various taverns and their receipt of tribute for not interfering with the successful operation of these places, amounted to a conspiracy to violate 26 U.S.C.A. § 1150 by aiding and abetting in the sale of such liquor,...