Opinion
No. 6127.
Argued June 19, 1950.
Decided June 21, 1950.
I.C. Crawford, Asheville, N.C., and W.Y. Wilkins, Jr., Tryon, N.C., for appellants.
Thomas A. Uzzell, Jr., U.S. Attorney, Asheville, N.C., for appellee.
Before PARKER and DOBIE, Circuit Judges, and MOORE, District Judge.
Charlie Douglas Lockhart, Loyal D. Hutcherson and Harold Pierce were duly indicted for conspiracy to violate the Internal Revenue Laws relating to the unlawful manufacture of intoxicating liquors, and the removal and concealment of such liquors. They were tried in the United States District Court for the Western District of North Carolina and were sentenced after the jury brought in a verdict of guilty. Notices of appeal were filed in the District Court by all three of the defendants. Before us, however, a brief was filed and oral argument had only as to Charlie Douglas Lockhart. Under these circumstances, we might well conclude that Hutcherson and Pierce had abandoned their appeals. We think, however, that Hutcherson and Pierce both had fair trials and there was more than substantial evidence to justify the submission of the question of their guilt to the jury. We now consider the appeal of Lockhart, hereinafter designated as appellant.
In the District Court, no motion for judgment of acquittal was made under Rule 29, Federal Rules of Criminal Procedure, 18 U.S.C.A., nor were any objections made to the judge's charge to the jury. We may, however, notice manifest error and, to prevent serious injustice, we may consider whether there was sufficient evidence to take the case to the jury. Tincher v. United States, 4 Cir., 11 F.2d 18; Massenberg v. United States, 4 Cir., 19 F.2d 62; Molina v. United States, 5 Cir., 162 F.2d 198; Mosca v. United States, 9 Cir., 174 F.2d 448.
There can be no doubt of the existence here of the conspiracy. We think, too, there was ample evidence justifying the submission to the jury of the question of appellant's participation in this conspiracy.
On October 7, 1949, officers of the Alcohol Tax Unit destroyed a large still not very far from the filling station, in which appellant had an interest, and arrested three nephews of appellant. Appellant signed bail bonds for his three nephews apprehended at the still. There was evidence that, during the life of the conspiracy, purchases were made from one wholesaler on behalf of appellant of over 40,000 pounds of sugar, very large quantities of yeast and hundreds of cartons of half-gallon fruit jars. At the still were found fruit jars of the make and kind purchased on behalf of appellant and a number of yeast cartons on which was stencilled "Thomas Howard", the name of the firm from which yeast had been purchased for appellant.
There was evidence that appellant stated that the truck used in hauling the sugar belonged to him, and that Buddy Lockhart, one of his nephews arrested at the still, was in appellant's employ. Agent Chandler, on one occasion, followed the truck containing sugar and fruit jars to the store and service station in which appellant had an interest. Chandler then questioned appellant as to the use to which the sugar would be put, Chandler testified that appellant said: "By God, I am going to send it back tomorrow morning. Thomas Howard did me wrong in loading that truck knowing you were there investigating. Buddy ought to have called me on the 'phone and told me that you were there, and I would have told him not to load."
Frank Atwell testified that appellant talked to him in Marion, North Carolina, about whether one King was a federal man. When Atwell replied that he did not know Atwell stated that appellant said: "If he (King) is (a federal man) we are both fixed up." King, an Alcoholic Tax Unit agent, testified that he had made several purchases of illicit whisky at the Lockhart filling station from appellant's co-defendant, Hutcherson, and, on one or more of these occasions, appellant, though he took no part in the transactions, was present.
The automobiles seized in this case were equipped with Edelbrock motors and dual carburetors. This equipment gives additional speed to the automobile and seems to be standard in the business of transporting illicit liquor.
We think it unnecessary to set out other evidence which clearly tended to show appellant's connection with this criminal conspiracy. He was given a fair trial and the jury, on the evidence, was justified in its verdict of guilty.
As to all three of the defendants, Charlie Douglas Lockhart, Loyal D. Hutcherson and Harold Pierce, the judgments of the District Court are, accordingly, affirmed.
Affirmed.