James Rowe, Sr. v. United States

Fifth Circuit

James Rowe, Sr. v. United States

324 F.2d 27, 1963 U.S. App. LEXIS 3892

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 25, 1963

Docket20190_1

StatusPublished

Cited by2 cases

This text of 324 F.2d 27 (James Rowe, Sr. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

James Rowe, Sr. v. United States, 324 F.2d 27, 1963 U.S. App. LEXIS 3892 (5th Cir. 1963).

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Opinion

PER CURIAM.

In this appeal from a conviction on three counts of a four-count indictment for violation of the liquor laws, appellant makes a strong contention that there was no evidence submitted to the jury to the effect that the liquor that was purchased failed to have the required revenue stamps affixed to it. While the Government can point to no evidence expressly stating that there were no stamps affixed to the whiskey, it contends that there was sufficient circumstantial evidence to warrant the jury's inferring that no stamps had been affixed. The most persuasive is that the purchases were made for $5.50 a gallon, whereas the stamps themselves would have cost $10.50 a gallon.

We think it is not necessary to determine whether there was sufficient evidence to warrant the jury’s finding of a verdict of guilty as to these two counts, *28 because we conclude that there is unquestionably ample evidence to support the jury’s verdict of guilt as to the fourth count. Since the sentence of 18 months falls within the maximum permissible for a single count, the sentence will not be disturbed even though there might be error in connection with one or more counts. Walker v. United States, 5 Cir., 285 F.2d 52, 60; Hall v. United States, 5 Cir., 286 F.2d 676, fn. 16, p. 680, cert. denied 366 U.S. 910, 81 S.Ct. 1087, 6 L.Ed.2d 236.

The judgment is affirmed.

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PER CURIAM.

In this appeal from a conviction on three counts of a four-count indictment for violation of the liquor laws, appellant makes a strong contention that there was no evidence submitted to the jury to the effect that the liquor that was purchased failed to have the required revenue stamps affixed to it. While the Government can point to no evidence expressly stating that there were no stamps affixed to the whiskey, it contends that there was sufficient circumstantial evidence to warrant the jury's inferring that no stamps had been affixed. The most persuasive is that the purchases were made for $5.50 a gallon, whereas the stamps themselves would have cost $10.50 a gallon.

We think it is not necessary to determine whether there was sufficient evidence to warrant the jury’s finding of a verdict of guilty as to these two counts, *28 because we conclude that there is unquestionably ample evidence to support the jury’s verdict of guilt as to the fourth count. Since the sentence of 18 months falls within the maximum permissible for a single count, the sentence will not be disturbed even though there might be error in connection with one or more counts. Walker v. United States, 5 Cir., 285 F.2d 52, 60; Hall v. United States, 5 Cir., 286 F.2d 676, fn. 16, p. 680, cert. denied 366 U.S. 910, 81 S.Ct. 1087, 6 L.Ed.2d 236.

The judgment is affirmed.

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324 F.2d 27, 1963 U.S. App. LEXIS 3892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-rowe-sr-v-united-states-ca5-1963.

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