Jesse Lee Durham, Appellant, v. United States of America, Appellee, 234 F.2d 694 (5th Cir. 1956)

The appellant, Jesse Lee Durham, and his brother, Claude E. Durham, were convicted of possession of non-taxed liquor. 26 U.S.C.A. § 2803. Officers of the United States and of the State of Georgia had located and were watching a stash of whiskey in the woods of Pike County, Georgia. The brothers Durham, about seven o'clock on the evening of June 10, 1954, traveled in a pickup truck driven by the appellant to a spot on a roadway near the liquor cache. The truck stopped. Claude got out, went to the liquor cache and brought back a gallon can of whiskey. Meanwhile the appellant had turned the truck around. Claude, with his gallon of illicit liquor, got back in the truck and it was driven to appellant's house. There the appellant and his brother were arrested. The liquor was found under the front seat of the car. Claude Durham told the officers that the whiskey belonged to him. At the trial, Claude testified that the whiskey belonged to him. Both defendants were convicted.

It is the theory of the appellant that if Claude was the owner of the whiskey, as by his admission he was, it was in his possession and appellant could have had no possession. This theory is incorrect. United States v. Hodorowicz, 7 Cir., 1939, 105 F.2d 218, certiorari denied 308 U.S. 584, 60 S. Ct. 108, 84 L. Ed. 489, 490. The case was clearly one for the jury and by the jury the question of appellant's guilt has been resolved. The judgment of conviction is

Affirmed.