Ira Tucker, Appellant, v. United States of America, Appellee, 278 F.2d 721 (5th Cir. 1960)

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US Court of Appeals for the Fifth Circuit - 278 F.2d 721 (5th Cir. 1960) May 27, 1960

Charles V. Silliman, Gladstone L. Kohloss, Orlando, Fla., for appellant.

Don M. Stichter, Special Atty., Robert F. Nunez, Asst. U. S. Atty., Tampa, Fla., E. Coleman Madsen, U. S. Atty., Miami, Fla., for appellee.

Before TUTTLE, CAMERON and JONES, Circuit Judges.


The appellant was convicted of possession of moonshine liquor. He appeals, saying the evidence is insufficient to sustain a conviction. Across the street from appellant's residence is a "jook", the Moonlight Club, operated by appellant's wife with some help from him. Behind the Club was an open tract supposedly owned by a person identified only as "Pete the Tailor". The appellant and two others were each permitted to keep hogs in separate pens on these premises and each had a nearby cooking machine for preparing food for his hogs. A deputy sheriff found nine gallon jugs of unstamped whiskey near the appellant's cooking machine. The appellant was charged with its possession. The deputy testified that he had taken moonshine "off a lot of customers at the jook." No more than this was adduced to identify the appellant with the liquor. It is not enough. No control or dominion of the contraband by the appellant is shown. Construing the evidence most favorably to the verdict, we conclude it does not sustain a verdict of guilt. The court should have directed an acquittal of the appellant. The judgment and sentence of the district court is reversed and a judgment of acquittal is here rendered for the appellant.

Reversed and rendered.