Opinion
No. 18250.
November 23, 1960.
Walter E. Gwinn, Miami, Fla., for appellant.
John L. Briggs, Asst. U.S. Atty., Jacksonville, Fla., E. Coleman Madsen, U.S. Atty., So. D. Florida, Miami, Fla., for appellee.
Before RIVES, Chief Judge, and TUTTLE and WISDOM, Circuit Judges.
The appellant was convicted of the possession and transportation of nontaxpaid whiskey. Contrary to his contentions, the Court is of the opinion that there was sufficient probable cause for the appellant's arrest. The seizure of the whiskey was incident to the arrest and took place after the appellant admitted having whiskey in his automobile.
The appellant contends that the failure of the United States to introduce the whiskey (which was destroyed by the Government agents) violated the "best evidence rule", and that this was reversible error. It is unnecessary to determine whether whiskey is primary evidence within the meaning of the rule. See, however, Dicks v. United States, 5 Cir., 1958, 253 F.2d 713 and Meyers v. United States, 1948, 84 U.S.App.D.C. 101, 171 F.2d 800, 11 A.L.R.2d 1. Here, the defense stipulated that the property seized was whiskey and offered no objection to the agents' testimony that it was moonshine.
The judgment is
Affirmed.