Robert Eugene Byrd, Appellant, v. United States of America, Appellee, 318 F.2d 25 (5th Cir. 1963)

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US Court of Appeals for the Fifth Circuit - 318 F.2d 25 (5th Cir. 1963) May 22, 1963

James M. Roberts, Atlanta, Ga., for appellant.

Charles L. Goodson, U. S. Atty., Bobby C. Milam, Asst. U. S. Atty., Atlanta, Ga., for appellee.

Before RIVES, LEWIS* , and BELL, Circuit Judges.


This appeal is from a conviction on those counts of an indictment charging possession of unregistered distilling apparatus in violation of 26 U.S.C.A. § 5601(a) (1), and possession of non tax paid distilled spirits in violation of 26 U.S.C.A. §§ 5205(a) (2) and 5604(a) (1).

The evidence disclosed that the Atlanta Fire Department was called to extinguish a fire in a house in that city. The firemen found, upon arrival, a whiskey still set up in the basement together with a quantity of sugar, bran, and half gallon fruit jars. Forty seven gallons of whiskey in jars containing no tax stamps were found at the still. Six vats containing a total of four thousand and fifty gallons of mash were found in the two bedrooms on the main floor. There was testimony by a revenue agent that the still appeared to have been in operation within a few hours of the fire.

No one was found at the house. Appellant rented the house on October 14, 1961 under an assumed name, some five months before the fire on March 20, 1962. He paid the rent monthly, making the last payment in person to the owner on March 13, 1962, seven days before the fire. Four letters addressed to him, and bearing recent dates, were found in the house. One of his fingerprints was found on a wine bottle taken from a refrigerator in the house.

This evidence, furnishing as it does a basis for a finding of constructive possession in appellant, was sufficient to support the jury verdict of guilty. See Teate v. United States, 5 Cir., 1962, 297 F.2d 120; Chastain v. United States, 5 Cir., 1956, 237 F.2d 422; Lovette v. United States, 5 Cir., 1956, 230 F.2d 263; Ramsey v. United States, 6 Cir., 1957, 248 F.2d 740; Chadwell v. United States, 6 Cir., 1958, 260 F.2d 257; and Mills v. United States, 4 Cir., 1952, 194 F.2d 184.



Of the Tenth Circuit, sitting by designation