Opinion
No. 3409.
January 23, 1933.
Appeal from the District Court of the United States for the Western District of Virginia, at Roanoke.
Floyd Carter was convicted of transporting intoxicating liquor, and he appeals.
Affirmed.
T.W. Messick, of Roanoke, Va. (D.H. Davis and John G. Challice, both of Roanoke, Va., on the brief), for appellant.
J.C. Shaffer, U.S. Atty., of Wytheville, Va.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
Under the rule laid down by this court in Ross v. United States, 37 F.2d 557, and by the Supreme Court of the United States in Husty v. United States, 282 U.S. 694, 51 S. Ct. 240, 75 L. Ed. 629, 74 A.L.R. 1407, there was no error in the imposition of the sentence of four years in this case. Under the decision of this court in Sharp v. United States, 55 F.2d 227, the judge below had the right, in fixing the sentence, to take into consideration the circumstances surrounding the commission of the offense as shown by the evidence. Here it was proven that the defendant recklessly and willfully drove his automobile, so as to endanger the lives of the officers, in endeavoring to force the car they were driving off the road and end the pursuit of the car transporting the whisky.
The defendant did not come within the purview of the amendment to the Jones Act ( 27 USCA § 91) as fifty gallons of intoxicating liquor were being transported and the evidence shows that the defendant was one half owner of the whisky and was in no sense an employee, casual or otherwise.
Affirmed.