Abraham Leroy BAKER, Appellant, v. UNITED STATES of America, Appellee, 227 F.2d 376

JONES, Circuit Judge. The appellant was charged in a five-count indictment with possession of an unregistered still, carrying on the business of a distiller without having given bond, carrying on the business of a distiller with intent to defraud the United States of its tax on distilled spirits, working at a still where no “Registered Distillery” sign was posted, and possession of untaxed liquor. On the first and last of these counts he was convicted. On the others he had the benefit of a directed verdict of acquittal.

Growing out of the same episode was a separate indictment for resisting arrest which was consolidated for trial with the other charges and on which a guilty verdict was returned but set aside on a motion for new trial. From the conviction of possession of an illicit still and possession of untaxed liquor appeal was taken. Federal and State officers were led during the nighttime by the sound of voices and the odor of cooking mash to a building in a rural area near Savannah, Georgia, which housed an illegal still in the process of making moonshine liquor.

Appellant was observed coming from the building and was in conversation with other persons at the premises. Ascertaining he was being observed he ran, on being seized he resisted, and on being subdued he said he knew the “revenues didn’t shoot at them if they ran” and that he couldn’t be blamed for trying to get away. On being searched it was found that appellant had a key ring upon which was a key which fit the lock on the ’ oor of the building in which the still was found and a key to a Plymouth automobile parked nearby.

In the car were 225 pounds of sugar, a quantity of charcoal and two pieces of copper pipe similar to pipe used in the still. Appellant contended and on the stand testified that he had gone from Savannah in the Plymouth with one Jim Brown, assumed by appellant to be the owner of the car, for the purpose of driving it back and working on it at a garage where appellant said he was employed. He admitted seeing the charcoal but thought nothing of it. The sugar was in the trunk of the car and he claimed he had no knowledge of it.

He explained his attempted flight and his resistance to arrest by saying he was scared and excited. Over appellant’s objection, and prior to appellant’s testimony, the court admitted evidence of seven prior convictions of violations of the internal revenue liquor laws. The appellant urges before us that reversal is required because of error in the admission of evidence of the prior convictions and because of inadequacy of the evidence to sustain a conviction. We agree that the first point is well taken.

Evidence of prior convictions of criminal offenses unconnected with the one on trial is, as a general rule, not admissible. There are exceptions to this rule, some of which are discussed in the frequently cited case of Weiss v. United States, 5 Cir., 1941, 122 F.2d 675, certi-orari denied 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550, rehearing denied 314 U.S. 716, 62 S.Ct. 478, 86 L.Ed. 570. Such testimony will be received for the purpose of showing specific knowledge, specific intent, motive, design or scheme where any such element is essential in the commission of the offense.

The crimes of possessing untaxed liquor and of possessing an unregistered still are not such offenses as require that specific intent which lowers the bar against evidence of convictions of unrelated offenses. McClain v. United States, 5 Cir., 1955, 224 F.2d 522. On this ground appellant must have a new trial. Appellant urges that the evidence against him was all circumstantial and not inconsistent with his innocence and that an acquittal should have been directed under the precedents established in Matthews v. United States, 5 Cir., 1949, 177 F.2d 278, and Vick v. United States, 5 Cir., 1954, 216 F.2d 228.

These cases we have read, and reading the Vick case we find a quotation from a decision of the Seventh Circuit Court of Appeals where it is said: “The facts in a broad sense are not dissimilar to our case. Yet there are differences, and it is the differences in each case which determine which case should be taken from the jury.” United States v. Mann, 7 Cir., 1939, 108 F.2d 354, 358. Here are factual differences from the cited cases of Matthews and Vick. Here we find no error in the refusal of the District Court to direct a verdict of acquittal.

The appellant urges that there was an absence of proof that the tax was not paid on the liquor, and that an erroneous charge was given. These questions are not likely to recur upon another trial and so do not require comment. In order that there may be a new trial the judgment is Reversed and remanded.