Joe Brown Reece and Leon Daniel Sheriff, Appellants, v. United States of America, Appellee, 392 F.2d 574 (5th Cir. 1968)

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U.S. Court of Appeals for the Fifth Circuit - 392 F.2d 574 (5th Cir. 1968) April 10, 1968

Frank B. Stow, Claude O. Garvin, Gainesville, Ga., for appellants.

Charles B. Lewis, Jr., Asst. U. S. Atty., Atlanta, Ga., for appellee.

Before BROWN, Chief Judge, AINSWORTH and GODBOLD, Circuit Judges.


Appellants were charged in a five count indictment with possessing an unregistered still, 26 U.S.C.A. § 5601(a) (1), producing distilled spirits, 26 U.S.C.A. § 5601(a) (8), carrying on the business of a distiller without giving bond, 26 U.S.C.A. § 5601(a) (4), making and fermenting mash fit for distillation, 26 U.S. C.A. § 5601(a) (7), and working at an illicit distillery, 26 U.S.C.A. § 5681(c). Each was found guilty on all counts. Appellant Reece was sentenced to prison for eighteen months on four counts, all to run concurrently, and on the misdemeanor fifth count, charging him with working at an illicit distillery, he was placed on probation for one year, that sentence to run consecutively to the other four counts. Appellant Sheriff was sentenced to two years on four counts but with eighteen month's probation and to six months on the misdemeanor fifth count, all to run concurrently. The only issue presented on appeal is the sufficiency of the evidence to sustain the convictions. We affirm.

We need not pause long to review the evidence presented by the government. It is enough to say that this was a classic case of being caught almost literally with jam on the fingers. This was no fly-by-night home-baked operation. Appellants were apprehended in the basement of a barn which contained a fully operating 1,000 gallon metal still, a great quantity of distilled spirits, over 15,000 gallons of mash, almost 10,000 pounds of sugar, 380 pounds of yeast, and over 1,000 fruit jars. Appellants' fingerprints were found on such tale-telling things as ketchup and jam bottles found in the barn. Sheriff was caught hiding behind the boiler and Reece was discovered under a pile of sugar sacks six feet deep. Both men were wearing cut-off pants and Reece had his shirt off. To this and the story that the effects of the warm, freshly-distilled alcohol had overcome them in such surroundings, they added the story which the jury could consider implausible that they had driven thirty miles to get to the still site just to buy a drink.

There was more than enough on which to sustain at least the felony counts under 26 U.S.C.A. §§ 5601(a) (8), (a) (4), and (a) (7), see Burke v. United States, 5 Cir., 1968, 387 F.2d 905; Beam v. United States, 5 Cir., 1967, 378 F.2d 937; Lockett v. United States, 5 Cir., 1967, 374 F.2d 883; Maddox v. United States, 5 Cir., 1964, 330 F.2d 1022, so proof of the possession count need not be examined.