Opinion
No. 6482.
March 9, 1938.
Appeal from the District Court of the United States for the District of New Jersey; Guy L. Fake, Judge.
Edward Rader was convicted of possession of an unregistered still, and of engaging in the business of a distiller without giving notice required by law, and he appeals.
Reversed.
Frederic M.P. Pearse, of Newark, N.J., for appellant.
John J. Quinn, U.S. Atty., of Red Bank, N.J., and William F. Smith, Asst. U.S. Atty., of Trenton, N.J.
Before BUFFINGTON and DAVIS, Circuit Judges, and DICKINSON, District Judge.
This is an illicit still charge of the usual type. There was ample evidence that the offense had been committed. The main question is whether there was sufficient evidence to support a verdict that the defendant was a guilty participant in the setting up of the still or in its operation. The instructions given the jury were in full accord with the law of the case, and the question of guilt fairly submitted to the jury. The real question is whether there should have been a directed verdict. The only evidence against this defendant was testimony that he had stated his willingness to contribute to the capital of the illicit project, and that he had gone in an automobile with his brother who inspected the proposed site for the still. There was no evidence that the defendant had in fact contributed to the capital and in truth testimony introduced by the prosecution that he had not. There was no evidence that he had inspected the site or had a hand in its selection. The evidence against him was that he had gone in the automobile, but had remained in it. We do not think this evidence warranted a finding (1) that he had been in the possession of a set-up still which he had failed to register, or (2) had engaged in the business of a distiller without giving the notice required by law. There was no conspiracy count in the indictment.
The eighth assignment of error is sustained, and the judgment of conviction and the sentence imposed are reversed.