James Huffman and Evelyn Nelson Huffman v. United States

297 F.2d 754

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 13, 1962
• Docket: 18723
• Status: Published

Opinions

CAMERON, Circuit Judge.

Appellant James Huffman and his wife Evelyn Nelson Huffman were convicted of possessing untaxpaid liquor in violation of Title 26 U.S.Code §§ 5205(a) (2) and 5604(a) (1) and were sentenced to fine and imprisonment. They were indicted in an eight count indictment and were found not guilty under six of the eight counts.

Count one was a conspiracy count charging that the appellants had conspired with James and V. O. Bx-idges to commit various violations of the Internal Revenue Laws, specifying thirteen overt acts. The second count charged the appellants and the Bridges with possession and control of an unregistered still contrary to §§ 5179(a) and 5601(a) (1) of Title 26 U.S.C. The remaining six counts charged the Huff mans (and in count three the Bridges) with illegal possession of whiskey in amounts varying from iy2 pints to 6,132 gallons, in containers not having stamps affixed. The total quantity charged in these six counts to have been possessed was 7,257 gallons, iy% pints. The appellants were convicted by the jury of the possession of 1 y2 pints, as charged in count five, and of 110 gallons as charged in count seven. They were acquitted of the charges of conspiracy, of possessing the still and of possessing a total of 7,147 gallons of whiskey as set forth in the remaining counts. V. O. Bridges, during the trial, entered a plea of guilty to count two, possession of the still, and count three, possession of 309 gallons of whiskey.

Appellants contend that their motion for directed verdict should have been granted on the ground that there was insufficient evidence to sustain the jury’s findings against them on counts three and seven. A careful x'eading of the record convinces us that the proof against Evelyn Nelson Huffman was not sufficient to support the verdict as against her and that the motion for directed verdict should have been granted. No good purpose will be served by detailing the evidence.

A receptacle containing one and one-half pints of whiskey was found in a locked outhouse adjacent to the dwelling occupied by Evelyn and James Huffman. The title to this property was in the son of James Huffman who lived in a distant city. Huffman gave permission for the search of the outhouse, and when the whiskey was found he claimed it as his own, stating that he was keeping that as “a little drinking whiskey.”

As to the 110 gallons covered by count seven, the evidence was not strong, but was, in our opinion, sufficient to warrant submission of this count to the jury. This whiskey was found by agents of the Alcohol Tax Unit in two charred barrels at a hay house about one-half mile south of the Huffman’s residence. That, too, was on land standing in the son’s name. The transfer of this property to the son had taken place when he was quite young and several years before the whiskey was found. The action had been taken in connection with domestic trouble which was threatened between James and Evelyn Huffman.

Evelyn Huffman claimed to be the owner of the hay in the house where the 110 gallons were found, but disclaimed any knowledge of the presence of the whiskey. She had testified that her husband’s business was collaborating with her in the growing of pastures, the raising of cattle, and selling them on the market. The jury was warranted in believing that James Huffman had actual possession of the field in which this hay house was located and, with his wife, owned the hay in it.

It was shown that, during the spring and early summer of 1959, James Huffman had purchased from the operator of a feed and seed store in Grenada, Mississippi nearly 4,000 pounds of .Balboa Rye grain. Huffman was accustomed to call in his truck and purchase the grain in 100 pound bags, paying cash for it. The largest delivery was eight or nine bags in June or July, 1959. This grain was suitable for use in the manufacture of whiskey. One of the representatives of the County Agent’s office testified that this grain was not generally planted in that section of the State, and he had never known of any plantings except a few in small quantities for experimental purposes. Some of the empty rye sacks were found in the garage at the Huffman home. From these facts and circumstances, we think a judgment of conviction on count seven is supported by substantial evidence.

Appellant James Huffman argues that the court below committed error in giving the jury a supplementary charge when, after more than four hours of deliberation, it was called back to the courtroom and had advised the court of its inability to agree upon a verdict. No exception was taken to the charge, and we do not agree with the appellant that the giving of it constituted plain error under Rule 52, Federal Rules of Criminal Procedure, 18 U.S.C.A. Cf. Allen v. United States, 1896, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528; Powell v. United States, No. 19030, 5 Cir., 1961, 297 F.2d 318; Cook v. United States, 5 Cir., 1958, 254 F.2d 871; Butler v. United States, 5 Cir., 1958, 254 F.2d 875.

We have carefully considered the other errors assigned by appellant James Huffman and do not find any of them possessed of merit.

As to appellant James Huffman, the judgment of the court below is affirmed; as to the appellant Evelyn Nelson Huffman, the judgment is reversed and judgment rendered here in her favor.

Affirmed in part and in part reversed and rendered.