Warner v. United States

COTTERAL, Circuit Judge. We adhere to our former decision in holding that the sufficiency of the evidence against Warner was reviewable, although the question was not saved by a motion for a directed verdict. Substantial evidence was requisite that was more consistent with his guilt than -with his innocence. Moore v. United States' (C. C. A.) 56 F.(2d) 794. In view of John Loehr’s plea of guilty, the inquiry is whether Warner was a party to the offenses. A further consideration of the record has convinced a majority of this court that we erred in estimating the evidence, and that it was ample to warrant the convictions. We advert more fully to the evidence for .the government. Six enforcement officers searched the farm premises of John Loehr, on the afternoon of June 12, 1939. At the bam or shed, they found a large still, vats of mash, sugar, rye, whisky, two agers in operation, and electrical apparatus, including a bell and a buzzer connection with the dwelling house. The agers were 59-gallon charred barrels, to which were attached hot water coils, with burners underneath them. An attendant was required to keep them going. As two of the officers drove up, a rat701 tie was heard, a shed door slammed, and Warner ran or started to run from the shed, lie was ordered to stop and obeyed. He then accompanied them to the still house, where his coat and hat were hanging-, and he donned them. He admitted he knew the still was there, but said he did not know who owned or operated it. On the floor there was a bed. He said he had gone there for sleep, was lying there, heard some one come up, arose, and thought “he better run out.” The still shed was built around a granary and there the mash vats and overflow were found, lie also stated he had been plowing corn for Ijoehr at $3 a day, but did not know how many horses Loehr had or which of them he drove to plow com. In the fields, which were muddy from rain, there had been no plowing, and none for the previous three or four days. Warner’s account differed materially. Loehr employed him to work at the farm. He had been there four or five days. He did not run but he walked from the still house. It had a west entrance. He had been in that part of the bam where there were a vise and tools, hut no still or still equipment. It was separated by a wall, with a connecting door, and it was necessary to pass through it to enter the room where the still and mash were located. The officers brought his coat to him. He denied telling the officers he had slept in the still room. He did not know who owned the still. He knew it was there, but not the mash and paraphernalia, as he had not been in to look at them. He had never helped to run the still. He left the shed because he heard a car in the yard and thought he would go to see who it was. He had been in the shed about five minutes. He had laid his hat and coat on a bench and staried to work on some cultivator shovels. Loehr had left the place before Warner got up that morning. No one had been around there that day. He slept at home and went to work about 7:30 a. m. He worked only four hours with Loehr, but did not remember the names of the horses. He had no conversation with Loehr that day and had no instruction from him. He never saw any one operating the still. The evidence of the government, if credited, was certainly sufficient to establish Warner’s guilt. We may not single out independent facts and declare them wanting; nor accept the defendant’s testimony, For example, his mere presence at the scene of the offenses was not of itself unlawful or criminal. But his claim of employment on the farm is disputed by the absence of signs of his work, by the testimony that he did not know how many horses Loehr had or used in plowing coin, and by his own admission he could not recall the names of the horses. A finding, therefore, was justified he was not employed for work on the farm. We ma.y assume John Loehr was the principal offender. Yet he was absent, there was testimony the still was in operation, an attendant was necessary to keep it going, and no one but Warner was there for that service. The' jury might well conclude he was employed for and engaged in operating the still. He was at the still house, with his hat and coat off, and naturally prepared for work. He had no apparent occasion to go there for sleep. His assertion that he was working on the cultivator shovels might have been true. But it lacked confirmation, and it was contradictory of his declaration to the officers that he had gone to the still house for sleep. It was a question for the jury to decide as to what ho was doing in fact. His asserted failure even to look at the still and equipment might also have been true, but it was unnatural and unreasonable to omit inspecting them. Finally, the jury was justified in finding he attempted to run away from the still house, and the fact was competent evidence tending to show his guilt. The evidence reached far beyond suspicion or conjecture. It pointed substantially to Warner’s guilt. It cannot be harmonized on the theory of exculpation, without invading the province of the jury. The convictions wore sustained by due proof. They are therefore affirmed.